MEMORANDUM OPINION
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
Judicial
Watch, Inc. filed a Freedom of Information Act (FOIA) request
seeking records from the Federal Bureau of Investigation
(FBI) regarding certain interviews during the investigation
of Rod Blagojevich, the former governor of Illinois. The
interviews of interest were FBI interviews of former
President Barack Obama, former presidential Chief of Staff
Rahm Emanuel, and former Senior Advisor to the President
Valerie Jarrett.
After
the FBI searched its records, it informed Judicial Watch that
all records it had located would be withheld under various
FOIA exemptions. Judicial Watch filed suit and both parties
moved for summary judgment. This Court granted the
government's Motion for Summary Judgment under FOIA
Exemption 7(A), which protects law enforcement records, as
the prosecution and conviction of Mr. Blagojevich was still
subject to further appeal. See Judicial Watch, Inc. v.
DOJ, 282 F.Supp.3d 242 (D.D.C. 2017).
Judicial
Watch filed an appeal. During the pendency of that appeal,
Mr. Blagojevich's appeals ended when the Supreme Court
denied his petition. See Blagojevich v. United
States, 136 S.Ct. 1491 (2016). The case was therefore
returned here for consideration of the remaining FOIA
exemptions asserted by the FBI. Upon review of the entire
record, the Court once again agrees with the government that
the records are exempt from disclosure. The Court will grant
the Motion for Summary Judgment filed by the U.S. Department
of Justice (DOJ) and will deny the cross motion filed by
Judicial Watch.
I.
BACKGROUND
The
facts of this case are described in detail in the Court's
previous Memorandum Opinion and will not be repeated here.
Judicial Watch, 282 F.Supp.3d at 246-47. The relevant facts
are summarized below with the addition of subsequent
developments.
On May
9, 2012, Judicial Watch submitted requests to FBI's
Record/Information Dissemination Section under the Freedom of
Information Act, 5 U.S.C. § 552.[1] See Ex. A, Decl. of David M.
Hardy (Hardy Decl.) [Dkt. 13-2], Judicial Watch Freedom of
Information Act Request (FOIA Request) [Dkt. 13-2] at
27.[2],[3] The FOIA Request asked for copies of all
records related to interviews of three top Obama
Administration officials, that is, the former President, his
Chief of Staff, and Senior Advisor to the President
concerning former Illinois Governor Rob Blagojevich.
Id. at 28. The FBI's search for records located
three forms 302 (Forms 302), which the FBI uses to summarize
facts and statements made by potential witnesses during
interviews. See Hardy Decl. ¶ 23; Decl. of Debra Riggs
Bonamici (Bonamici Decl.) [Dkt. 13-3] ¶ 7. As Mr.
Blagojevich's conviction for attempted extortion, wire
fraud, and lying to federal investigators was still subject
to further appeal at that time, the FBI notified Judicial
Watch that it would be withholding the records pursuant to
FOIA Exemption 7(A), which protects records compiled for law
enforcement purposes. See Ex. C, Hardy Decl., June 18, 2012
Letter from DOJ to Judicial Watch [Dkt. 13-2] at 34. FBI also
stated that the requested records were fully protected by
FOIA Exemption 5, which protects attorney work-product, and
protected in part by Exemptions 3, 6, 7(C), and 7(E). See
Hardy Decl. ¶ 37; Bonamici Decl. ¶¶ 4-8.
Judicial Watch filed suit to contest the applicability of the
cited FOIA Exemptions and DOJ moved for summary judgment.
Def.'s Mot. for Summ. J. [Dkt. 13].[4] Upon review, this
Court granted DOJ's motion for summary judgment, allowing
the Forms 302 to be withheld under Exemption 7(A). Judicial
Watch, 282 F.Supp.3d at 250-51. It did not reach the other
claimed exemptions.
As Mr.
Blagojevich had exhausted his appeals in the interim, the
applicability of Exemption 7(A) became moot and the case was
remanded for consideration of the additional FOIA Exemptions
claimed by the FBI. See Mandate [Dkt. 26].[5]
II.
LEGAL STANDARD
FOIA
“represents a balance struck by Congress between the
public's right to know and the government's
legitimate interest in keeping certain information
confidential.” Ctr. for Nat'l Sec. Studies v.
DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003) (citing John
Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)).
Under FOIA, federal agencies must release records to the
public upon request, unless one of nine statutory exemptions
apply. See NLRB v. Sears, Roebuck & Co., 421
U.S. 132, 136 (1975); 5 U.S.C. § 552(b). To prevail in a
FOIA case, a plaintiff must show that an agency has
improperly withheld agency records. See Odland v.
FERC, 34 F.Supp.3d 3, 13 (D.D.C. 2014) (citing DOJ
v. Tax Analysts, 492 U.S. 136, 142 (1989)). The
defending agency must demonstrate that its search for
responsive records was adequate, that any invoked exemptions
actually apply, and that any reasonably segregable non-exempt
information has been disclosed. See id.
FOIA
cases are typically and appropriately decided on summary
judgment. See Sanders v. Obama, 729 F.Supp.2d 148,
154 (D.D.C. 2010). Under Rule 56 of the Federal Rules of
Civil Procedure, summary judgment must be granted when the
pleadings, the discovery and disclosure materials on file,
and any affidavits, show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(c)(2); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). The party moving for summary judgment “bears
the initial responsibility . . . [to] demonstrate the absence
of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). In ruling on a
motion for summary judgment, a court must draw all
justifiable inferences in favor of the nonmoving party and
accept the nonmoving party's evidence as true. See
Anderson, 477 U.S. at 255. The nonmoving party, however, must
provide more than the “mere existence of a scintilla of
evidence . . .; there must be evidence on which the jury
could reasonably find for the [nonmoving party].”
Id. at 252.
III.
ANALYSIS
A.
Adequacy of the Search
FOIA
requires an agency to conduct a good faith search that is
reasonably calculated to produce all relevant records.
Oglesby v. Dep't of the Army, 920 F.2d 57, 68
(D.C. Cir. 1990). An agency can support the adequacy of its
search with affidavits that aver to its reasonableness; such
affidavits are entitled to a presumption of good faith.
See Defs. of Wildlife v. Dep't of Interior, 314
F.Supp.2d 1, 8 (D.D.C. 2004). A plaintiff can only rebut such
affidavits when they are inadequate on their face or by a
showing of bad faith sufficient to overcome the presumption
that the agency acted in good faith. See Id. If
contested, the agency ...