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American Center for Law and Justice v. United States Department of Justice

United States District Court, District of Columbia

September 7, 2018

AMERICAN CENTER FOR LAW AND JUSTICE, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION AND ORDER

          TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE.

         Plaintiff American Center for Law and Justice (“ACLJ”) has requested records from Defendant Department of Justice (“DOJ”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. The records relate to a June 2016 meeting between then-Attorney General Loretta Lynch and former President Bill Clinton that occurred on board an airplane in Arizona. The parties have cross-moved for summary judgment. After initially agreeing to limit the scope of the instant motions to the issue of DOJ's withholdings of certain material under FOIA's exemptions, ACLJ now also argues that DOJ failed to conduct an adequate search. DOJ argues that both its search and its withholdings were proper.

         For the reasons explained below, DOJ's motion for summary judgment will be granted in part and denied in part, and ACLJ's cross-motion will be denied. DOJ shall make a supplemental submission and renewed motion as set forth below by October 9, 2018. ACLJ shall file any response and cross-motion by October 23, 2018.

         I. Factual and Procedural Background

         According to the complaint, on June 27, 2016, then-Attorney General Lynch and former President Clinton met aboard a parked airplane at Sky Harbor International Airport in Phoenix, Arizona (the “airplane meeting”). See ECF No. 1 (“Compl.”) ¶ 7. President Clinton's wife Hillary Clinton, then a candidate for President, was connected to an ongoing DOJ investigation at the time. See ECF No. 23 (“Pl.'s Br.”) at 2. Given that context, the airplane meeting quickly became the subject of significant press attention. See Id. at 10-11.

         On July 15, 2016, ACLJ filed a FOIA request with DOJ that sought various categories of documents relating to the airplane meeting. See ECF No. 22-1 (“Brinkmann Decl.”) ¶ 3 & Ex. A. On November 2, 2016, having not yet received any response from DOJ, ACLJ filed the instant action. Compl. On November 18, 2016, DOJ acknowledged receipt of the FOIA request. Brinkmann Decl. ¶ 5 & Ex. B. In July and August 2017, DOJ made two productions totaling 413 pages to ACLJ. See Id. ¶¶ 6-7 & Exs. C-D. The productions included redactions that DOJ made pursuant to FOIA Exemptions 5, 6, and 7(C). See Id. DOJ informed ACLJ that, in its view, these productions satisfied its obligations under FOIA. Id. ¶ 7 & Ex. D.

         The parties met and conferred to discuss the productions. ECF No. 20 (“9/27/17 Status Report”) ¶ 4. During the meet-and-confer process, ACLJ identified several concerns about DOJ's withholdings. See Id. ¶ 5. In response, DOJ revised the redactions it had made to two documents. Id. ¶ 6. ACLJ informed DOJ that it continued to dispute DOJ's invocation of the deliberative-process privilege under Exemption 5 for certain documents, and that, more generally, it continued to challenge DOJ's compliance with FOIA's segregability requirement for the withholdings under Exemption 5. See ECF No. 23-1 (“Southerland Decl.”) ¶ 3; ECF No. 23-3 (email between counsel for the parties).

         On September 27, 2017, the parties filed a joint status report that set forth an agreed-upon plan for further proceedings in the case. 9/27/17 Status Report. The report explained that the parties had “determined that motions practice will be necessary to resolve Plaintiff's remaining objections to Defendant's withholdings.” Id. ¶ 7. The parties proposed a briefing schedule for motions for summary judgment, which the Court adopted by minute order. See id.; Minute Order of October 12, 2017.

         The parties then filed the instant motions and related briefing. ECF No. 21; ECF No. 21-1 (“Def's Br.”); Pl.'s Br.; ECF No. 25 (“Def's Reply”); ECF No. 27 (“Pl.'s Reply”). In its opening brief, DOJ sought only to support the redactions made to 11 documents, which it understood to be the only documents still in dispute. Def's Br. at 2 & n.1. In its cross-motion, ACLJ sought to broaden the dispute in two respects. First, it explained that DOJ had misinterpreted the scope of its objections to DOJ's withholdings, which encompassed not only DOJ's Exemption 5 redactions in the 11 documents but also, more generally, whether DOJ had adequately segregated “factual information” in all redacted documents. Pl.'s Br. at 5 n.1. Second, despite the parties' earlier agreement that only DOJ's redactions were at issue, ACLJ argued that DOJ's search was inadequate, as well. Id. at 11-12. ACLJ explained that, since the 9/27/17 Status Report, it had received a document from another agency that it believed DOJ should have produced in response to the FOIA request. Id. In its reply, DOJ provided additional information about its search terms and withholdings. See Def's Reply; ECF No. 25-1 (“Second Brinkmann Decl.”); ECF No. 25-2 (“Def's Ex. A”).

         II. Legal Standard

         Under Federal Rule of Civil Procedure 56, a court must 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). “Summary judgment is appropriately granted when, viewing the evidence in the light most favorable to the non-movants and drawing all reasonable inferences accordingly, no reasonable jury could reach a verdict in their favor.” Lopez v. Council on Am.-Islamic Relations Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016).

         “[T]he vast majority of FOIA cases can be resolved on summary judgment . . . .” Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Congress enacted FOIA in 1966 to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)). “FOIA ‘mandates that an agency disclose records on request, unless they fall within one of nine exemptions.'” EPIC v. DHS, 777 F.3d 518, 522 (D.C. Cir. 2015) (quoting Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011)).

         In FOIA cases, “to obtain summary judgment the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Mobley v. CIA, 806 F.3d 568, 580 (D.C. Cir. 2015) (quoting Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). “The court may rely on a ‘reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.'” Id. at 580-81 (quoting Oglesby, 920 F.2d at 68). “The court applies a ‘reasonableness' test to determine the ‘adequacy' of a search methodology, consistent with congressional intent tilting the scale in favor of disclosure . . . .” Morley, 508 F.3d at 1114 (quoting Campbell v. DOJ, 164 F.3d 20, 27 (D.C. Cir. 1998)).

         In addition, if the agency has invoked any of FOIA's exemptions, the “burden is on the agency to justify withholding the requested documents, and the FOIA directs district courts to determine de novo whether non-disclosure was permissible.” EPIC, 777 F.3d at 522. “Summary judgment is warranted on the basis of agency affidavits when the affidavits 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)). That is, the agency must provide a “logical” or “plausible” justification for the exemption. Id. (quoting Wolf v. CIA, 473 F.3d 370, 375 (D.C. Cir. 2007)). The agency cannot rely on “conclusory and generalized allegations of exemptions.” Morley, 508 F.3d at 1115 (quoting Founding Church of Scientology of Wash., D.C, Inc. v. NSA, 610 F.2d 824, 830 (D.C. Cir. 1979)).

         FOIA further requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). Before approving the government's withholdings, the court has an affirmative duty to ensure that the segregability requirement is satisfied, even if it must do so sua sponte. See Morley, 508 F.3d at 1123.

         III. Analysis

         For the reasons explained below, the Court will grant DOJ's motion for summary judgment except as it relates to two particular documents. The Court will order DOJ to provide supplemental information justifying the redactions in those two documents. ACLJ's motion will be denied.

         A. The Adequacy of DOJ's Search

         ACLJ argues that DOJ's search was inadequate because the search failed to turn up a responsive document that subsequently came into ACLJ's possession via another FOIA request. See Pl.'s Br. at 11-12. And ACLJ's reply adds two additional grounds for this argument: that DOJ (1) used search terms that were too limited, and (2) improperly narrowed the time frame of certain searches. See Pl.'s Reply at 8-9. The Court ...


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