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Judicial Watch, Inc. v. U.S. Department of Justice

United States District Court, District of Columbia

June 25, 2019

JUDICIAL WATCH, INC., Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.

          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 ...


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