MEMORANDUM OPINION
AMY
BERMAN JACKSON UNITED STATES DISTRICT JUDGE
Plaintiff,
Campaign Legal Center, submitted a request to the Department
of Justice under the Freedom of Information Act, 5 U.S.C.
§ 552, seeking records relating to “President
Trump's allegations and proposed investigation of
‘widespread voter fraud.'” Compl. [Dkt. # 1]
¶ 1. In response to the request, the government released
six pages of responsive records, including an email chain,
with partial redactions pursuant to FOIA Exemption 6.
See 5 U.S.C. § 552(b)(6). Plaintiff brought
this suit against the government on February 13, 2018,
challenging only the redaction of the names in the email
chain. Compl., “Requested Relief” at 6-7. The
government subsequently released two of the names, including
the name of the author of the original email, Hans von
Spakovsky of the Heritage Foundation. His email, which was
ultimately forwarded to Attorney General Jeff Sessions,
sought a position on the President's commission on voter
fraud, which he later obtained. Ex. E to Vanessa R. Brinkmann
Decl. [Dkt. # 13-2] (“Redacted Email”).
The
government continues to the withhold the names of three other
individuals who received and/or were mentioned in von
Spakovsky's original email on the ground that revealing
their identities would constitute an unwarranted invasion of
their personal privacy. The government filed a motion for
summary judgment, and plaintiff opposed it and filed its own
cross motion for summary judgment.
Because
the Court finds that the public has an interest in knowing
about the formation of the Commission, including whether any
other individual mentioned in the email was ultimately
appointed alongside von Spakovsky, it finds that the release
of the three individuals' names would not constitute an
“unwarranted invasion of personal privacy” under
5 U.S.C. § 552(b)(6), and the names are not exempt from
release.
BACKGROUND
The
Presidential Advisory Commission on Election Integrity
On May
11, 2017, President Trump issued an Executive Order
establishing the Presidential Advisory Commission on Election
Integrity (“the Commission”). Exec. Order No. 13,
799, 82 Fed. Reg. 22, 389 (May 11, 2017). The Commission,
which was “solely advisory” in nature, was tasked
with studying ways to improve the public's confidence in
federal elections and to investigate “vulnerabilities
in voting systems and practices . . . that could lead to
improper voter registrations and improper voting, including
fraudulent voter registrations and fraudulent voting.”
Id. The Commission was directed to submit a report
to the President with its findings, and it was set to
terminate thirty days after submitting the report.
Id. at 22, 390. In order to accomplish its mission,
the Commission was authorized to “hold public meetings
and engage with Federal, State, and local officials, and
election law experts, as necessary.” Id. at
22, 389.
The
Executive Order states that the Vice President shall chair
the Commission, and that the President shall appoint up to
fifteen additional members, “who shall include
individuals with knowledge and experience in elections,
election management, election fraud detection, and voter
integrity efforts, and any other individuals with knowledge
or experience that the President determines to be of value to
the Commission.” Id. at 22, 389. On the day
the Commission was established, the President named Vice
President Mike Pence as the chair and Kansas Secretary of
State Kris Kobach as Vice-Chair, and he appointed five
additional commission members.[1] A month and a half later, on June
29, 2017, the President added Hans von Spakovsky, a senior
legal fellow at the Heritage Foundation and the author of the
email at issue in this litigation, to the
Commission.[2]
On July
11, 2017, a group of Democrats on the Senate Judiciary
Committee sent a letter to Attorney General Sessions and
Acting Assistant Attorney General Wheeler seeking information
on what they characterized as “apparent
coordination” between the Department of Justice and the
Commission.[3] The Senators expressed their concern that
the Commission sent a letter requesting “sensitive
voter roll data from state election officials” on the
same day DOJ issued a letter to forty-four states requesting
information about state-level procedures for maintaining
voter registration lists. Senators' July 2017 Letter.
They noted that “[t]he Commission's June 28 request
for voter data has been met with resistance from state
election officials from both parties, and forty-four states
have refused to provide the Commission with all of the data
it requested.” Id.
On
September 26, 2017, Senators sent another letter to Attorney
General Sessions specifically seeking information about his
potential involvement in von Spakovsky's appointment to
the Commission.[4] This inquiry was prompted by the partial
release of the email chain that is at issue in this
litigation. The Senators sent a “follow up”
letter on October 17, 2017 regarding their outstanding
request for information concerning DOJ's involvement with
the Commission and expressing growing concern about the
Commission's work which they viewed to be conflict with
the DOJ's duty to protect voters'
rights.[5]
The
Commission did not last long. President Trump disbanded it on
January 3, 2018, citing the refusal of many states to comply
with the Commission's data requests. Exec. Order No. 13,
820, 83 Fed. Reg. 969 (Jan. 3, 2018); Statements and
Releases, Statement by the Press Secretary on the
Presidential Advisory Commission on Election Integrity, Jan.
3, 2018,
https://www.whitehouse.gov/briefings-statements/statement-press-secretary-presidential-advisory-commission-election-integrity/.
The
FOIA Request
On
February 15, 2017, plaintiff submitted a FOIA request to the
Office of Information Policy (“OIP”) of DOJ
seeking records concerning:
a) President Trump's public voter fraud allegations,
b) any actual or potential investigation into alleged voter
fraud,
c) any actual or potential executive order related to alleged
voter fraud,
d) the creation of a commission or other agency to
investigate or otherwise address alleged voter fraud, or any
proposal to create such commission or agency,
e) any private organization, such as True the Vote or King
Street Patriots, that addresses claims of voter fraud or
electoral integrity,
f) any potential amendments to the National Voter
Registration Act
Ex. A
to Vanessa R. Brinkmann Decl. [Dkt. # 13-2] (“FOIA
Request”) at 4-5. The request also sought
communications to or from:
a) the presidential transition team about voter fraud or
electoral integrity,
b) Kris Kobach, Kansas Secretary of State, or
c) Gregg Phillips, Catherine Engelbrecht, or any employee of
any private organization, such as True the Vote or King
Street Patriots, that addresses claims of voter fraud or
electoral integrity
Id. at 5. The time frame for the request was
November 9, 2016 to the “present.” Id.
at 4. In the request, plaintiff stated that it became
interested in this information following the President's
comments that a “major investigation” into
alleged voter fraud was necessary, which it feared could be
the “first step in an agenda to make it harder to
vote.” FOIA Request at 3-4. Although at the time the
President had expressed the need for an investigation,
id. at 3-4, a commission had not yet been
established.
On
August 22, 2017, OIP notified plaintiff that the searches had
been completed, and it released six pages of responsive
records, including the redacted email chain which is the
subject of this litigation. Vanessa R. Brinkmann Decl. [Dkt.
# 13-2] (“Brinkmann Decl.”) ¶ 5; Ex. C to
Brinkmann Decl. [Dkt. # 13-2] (“OIP Final
Response”). OIP initially redacted the names of several
individuals who appeared in the email chain, as well as the
contact information of those individuals, and one incidental
remark about personal travel plans, pursuant to FOIA
Exemption 6, “which pertains to information the release
of which would constitute a clearly unwarranted invasion of
the personal privacy of third parties.” OIP Final
Response at 1, citing 5 U.S.C. § 552(b)(6).
Plaintiff
filed an administrative appeal which was denied, Ex. 4 to
Compl. [Dkt. # 1-4]; Ex. 5 to Compl. [Dkt. # 1-5], and then
it filed this suit on February 13, 2018 arguing that the
release of the redacted names that appeared in the email
chain “would not constitute a clearly unwarranted
invasion of personal privacy.” Compl. ¶ 11. The
complaint did not challenge the redactions of phone numbers,
email addresses, or other private data in the records
produced. Id.; see also Id.
“Requested Relief” at 6-7 (seeking an order to
disclose the redacted names). Nor did plaintiff challenge the
adequacy of the agency's search. See generally
Compl.
Following
plaintiff's suit, the agency reconsidered its
withholdings and released the names of two individuals who
appeared in the email chain, Hans von Spakovsky and Ed Haden.
Ex. D to Brinkmann Decl. [Dkt. # 13-2]. According to the
government's declarant, the agency released their names
since their heightened degree of “engagement”
with the government reduced their privacy interest: von
Spakovsky “authored the original e-mail and publicly
acknowledged it, ” and Haden “affirmatively
forwarded that e-mail to the government.” Brinkmann
Decl. ¶ 15.
On
April 19, 2018, the government filed a motion for summary
judgment arguing that it was justified in continuing to
withhold the other three names and an incidental reference to
von Spakovsky's personal travel plans in the email.
Def.'s Mot. for Summ. J. [Dkt. # 13] (“Def.'s
Mot.”); Mem. in Supp. of Def.'s Mot. for Summ. J.
[Dkt. # 13-1] (“Def.'s Mem.”) at 6-11.
Plaintiff opposed that motion, and filed its own motion for
summary judgment challenging those redactions, and arguing in
the alternative that the Court conduct an in camera
review. Pl.'s Mot. for Summ. J. [Dkt. # 15]; Mem. in Opp.
to Def.'s Mot. & in Supp. of Pl.'s Cross-Mot. for
Summ. J. [Dkt. # 15] (“Pl.'s Cross-Mot.”).
Those motions are fully briefed and ripe for decision.
See also Def.'s Combined Reply in ...