United States District Court, District of Columbia
G. Sullivan United States District Judge.
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.
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.
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.
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. Between February 2017 and
June 2017, CPI employed another tool-FOIA-in an attempt to
unearth certain records concerning Secretary Ross and Mr.
Ricketts. 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
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).
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.
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. 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.
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.
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”). 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
“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).
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).