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Campaign Legal Center v. United States Department of Justice

United States District Court, District of Columbia

March 15, 2019

CAMPAIGN LEGAL CENTER, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

          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 ...


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