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Center for Public Integrity v. United States Department of Commerce

United States District Court, District of Columbia

August 8, 2019

CENTER FOR PUBLIC INTEGRITY Plaintiff,
v.
UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.

          MEMORANDUM OPINION

          Emmet G. Sullivan United States District Judge.

         In 2017, the President nominated Wilbur L. Ross, Jr., as the Secretary of Commerce and Todd M. Ricketts as the Deputy Secretary of Commerce. Seeking certain records concerning both nominees, Plaintiff Center for Public Integrity (“CPI”) submitted separate requests to the United States Department of Commerce (“DOC”) and the United States Office of Government Ethics (“OGE”)-an independent agency within the Executive Branch. CPI's request to DOC sought communications between then-nominee Secretary Ross and DOC's Ethics Law and Programs Division staff from November 2016 through the present. CPI filed two requests with OGE, seeking: (1) records regarding Secretary Ross's financial and ethics disclosures as well as his potential conflicts of interest; and (2) records among OGE employees about Mr. Ricketts, or between OGE employees and Mr. Ricketts.

         Unsatisfied with the responses to its requests, CPI filed this action against DOC and OGE (collectively, the “Defendants”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. CPI concedes that Defendants adequately searched for responsive documents and properly applied the claimed exemptions under FOIA. At issue here is whether Defendants released all reasonably segregable information in certain documents withheld in full.

         Pending before the Court are the parties' cross-motions for summary judgment. Upon careful consideration of the parties' submissions, the applicable law, and the entire record herein, the Court concludes that Defendants have failed to meet their burden of demonstrating that all reasonably segregable information has been disclosed to CPI. Therefore, the Court GRANTS IN PART and DENIES IN PART Defendants' Renewed Motion for Summary Judgment and GRANTS IN PART, DENIES IN PART, and HOLDS IN ABEYANCE Plaintiff's Cross-Motion for Summary Judgment.

         I. Background

         The following facts-drawn from the parties' submissions-are undisputed, except where indicated. CPI is a non-profit organization devoted to “using the tools of investigative journalism” to “reveal[] abuses of power, corruption and betrayal of public trust.” Compl., ECF No. 1 at 2 ¶ 4.[1] Between February 2017 and June 2017, CPI employed another tool-FOIA-in an attempt to unearth certain records concerning Secretary Ross and Mr. Ricketts.[2] On February 21, 2017, CPI submitted a FOIA request to DOC, seeking any communications between the Chief of DOC's Ethics Law and Program Division, David Maggi, or his staff, and Commerce Secretary nominee Ross or any of his representatives. E.g., Decl. of David Maggi (“Maggi Decl.”), ECF No. 15-2 at 2 ¶ 5; Pl.'s Cross-Mot. for Summ. J. & Opp'n to Defs.' Renewed Mot. for Summ. J. (“Pl.'s Mot.”), ECF No. 16 at 3 (“The likely date range of the records is Nov. 29, 2016 through the present.” (citations omitted)). On March 10, 2017, OGE received a separate request from CPI, seeking any records pertaining to Secretary Ross's “financial and ethics disclosures and potential conflicts of interest.” Decl. of Rachel K. Dowell (“Dowell Decl.”), ECF No. 15-5 at 2-3 ¶ 9.

         In early 2017, OGE received FOIA requests for records relating to the financial disclosures and potential conflicts of interest of civilian nominees submitted by the President to the Senate for confirmation. E.g., Defs.' Statement of Material Facts Not in Dispute (“Defs.' SOMF”), ECF No. 15-7 at 2; Pl.'s Counter-Statement of Material Facts (“Pl.'s SOMF”), ECF No. 16-1 at 2. On June 14, 2017, OGE received a request from CPI for any communications between OGE employees regarding Mr. Ricketts, or from OGE employees to Mr. Ricketts or any of his representatives. Pl.'s SOMF, ECF No. 16-1 at 1-2 (citing Dowell Decl., ECF No. 15-5 at 4 ¶ 15).

         OGE and DOC subsequently conducted searches of their systems and shared drives. Pl.'s SOMF, ECF No. 16-1 at 2-3, 4. Initially, DOC located 437 responsive documents, but released three responsive documents in June 2017. Id. at 5. Dissatisfied with those results, CPI administratively appealed DOC's withholdings in September 2017. Maggi Decl., ECF No. 15-2 at 3 ¶ 9.

         On November 9, 2017, CPI brought this action against DOC and OGE, challenging the responses to its FOIA requests. See Compl., ECF No. 1 at 3-4 ¶¶ 13-22. In December 2017, OGE released twenty-four pages of responsive documents, subject to redactions under FOIA Exemptions 5 and 6. Dowell Decl., ECF No. 15-5 at 4 ¶ 17. Since certain responsive records were created by DOC employees, OGE “referred [those] responsive records that originated with [DOC] to that Department on December 12, 2017.” Id. In January 2018, OGE turned over 151 pages, subject to redactions under FOIA Exemptions 3, 4, 5, and 6, and withheld 177 pages in full, subject to the same claimed exemptions.[3] Id. at 3 ¶ 12. Subject to redactions under those same FOIA exemptions, OGE released 238 pages in February 2018, withholding 337 pages in full. Dowell Decl., ECF No. 15-5 at 3 ¶ 13. OGE then released sixty pages, invoking the same FOIA exemptions, and withheld in full 539 pages in March 2018. Id. at 3 ¶ 14.

         DOC conducted a “line-by-line review” of 6, 853 pages of documents in April 2018, and 5, 800 pages of documents in May 2018. Maggi Decl., ECF No. 15-2 at 3 ¶¶ 11-13. Following that review and CPI's administrative appeal, DOC released 132 documents in full and 130 documents in part, withholding sixty-three documents in June 2018. Id. at 4 ¶ 14. DOC also released in part 153 documents that included portions authored by both DOC and OGE employees, referring CPI to OGE's release of thirty-eight e-mail chains totaling 154 pages that were not authored by DOC employees. Id. Finally, DOC withheld certain documents in full or in part, invoking Exemptions 3, 4, 5, and 6. See Id. at 4-6 ¶¶ 16-24.

         The parties filed cross-motions for summary judgment. See Defs.' Renewed Mot. for Summ. J. (“Defs.' Mot.”), ECF No. 15 at 1-23; see also Pl.'s Mot., ECF No. 16 at 1-6. Defendants argue that they are entitled to summary judgment because there is no genuine dispute of material fact as to whether the agencies: (1) conducted adequate and reasonable searches; (2) produced all non-exempt, responsive documents; and (3) satisfied their obligations to segregate exempt from non-exempt information. Defs.' Mot., ECF No. 15 at 9, 22. Defendants submitted declarations as well as indices of responsive records under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (the “Vaughn indices”).[4] E.g., Ex. 1, Dowell Decl., ECF No. 15-6 at 1-164; Ex. 1, Maggi Decl., ECF No. 15-3 at 1-72; Ex. 2, Maggi Decl., ECF No. 15-4 at 1-4. The Vaughn indices list the records released and those withheld, in whole or in part, under the FOIA exemptions. CPI neither contests the adequacy of the searches, nor challenges the applicability of the claimed exemptions. Pl.'s Mot., ECF No. 16 at 2, 5; see also Pl.'s Reply, ECF No. 20 at 1-2. Rather, CPI argues that “Defendants have not released all reasonably segregable non-exempt information.” Pl.'s Mot., ECF No. 16 at 2. The briefing is now complete, and the parties' cross-motions for summary judgment are ripe and ready for the Court's adjudication.

         II. Legal Standard

         The “vast majority” of FOIA cases can be resolved on summary judgment. Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A court may grant summary judgment only if “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). Likewise, in ruling on cross-motions for summary judgment, the court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed. See Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice, 658 F.Supp.2d 217, 224 (D.D.C. 2009) (citation omitted). Under FOIA, “the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester[, ]” and summary judgment is appropriate only after “the agency proves that it has fully discharged its [FOIA] obligations . . . .” Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C. 1996) (citations omitted).

         When considering a motion for summary judgment under FOIA, the court must conduct a de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). The court may grant summary judgment based on information provided in an agency's affidavits or declarations when they are “relatively detailed and non-conclusory, ” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation omitted), and “not controverted by either contrary evidence in the record nor by evidence of agency bad faith, ” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are “accorded a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.'” SafeCard Servs., 926 F.2d 1197 at 1200 (citation omitted).

         III. ...


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