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Majuc v. United States Department of Justice

United States District Court, District of Columbia

September 13, 2019

JOHNMARK MAJUC and JOSEPH JOK, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION AND ORDER

          AMIT P. MEHTA UNITED STATES DISTRICT JUDGE

         I.

         This case concerns a Freedom of Information Act (“FOIA”) request seeking records concerning BNP Paribas, S.A. (“BNPP”) collected during a criminal investigation by the United States Department of Justice (“DOJ” or “Defendant”). See Compl., ECF No. 1, ¶¶ 1-2. The DOJ prosecuted BNPP in the Southern District of New York (“SDNY”) for evading economic sanctions against Sudan, Iran, and Cuba, and BNPP ultimately pleaded guilty to conspiracy to violate the International Emergency Economic Powers Act and Trading with the Enemy Act. Public Decl. of John E. Cunningham III, ECF No. 21-2 [hereinafter Cunningham Decl.], Ex. 4, 6. Plaintiffs Johnmark Majuc and Joseph Jok, two Sudanese refugees, believe that the requested documents are relevant to a class action lawsuit pending against BNPP. See Compl., ¶ 3; see also Kashef, et al. v. BNP Paribas S.A., et al., No. 1:16-cv-03228-AJN (S.D.N.Y., filed April 29, 2016).

         Before the court are the parties' cross-motions for summary judgment. For the reasons discussed below, the parties' motions are denied.

         II.

         On November 17, 2016, Plaintiffs submitted a FOIA request seeking thirty-three categories of documents pertaining to the DOJ's investigation of BNPP for facilitating financial transactions with Sudan in violation of U.S. sanctions. Cunningham Decl., Ex. 1. The DOJ assigned the FOIA request to the Criminal Division, and informed Plaintiffs that it was searching the sections that it thought most likely to contain responsive records. Id. at Ex. 2. Approximately four months later, the DOJ rejected Plaintiffs' request in its entirety and refused to produce even a single page. It notified Plaintiffs that “after carefully considering [their] request, ” the DOJ had “determined that all responsive records are exempt from disclosure pursuant to Exemption 7(A), which permits withholding records or information compiled for law enforcement purposes when disclosure could reasonably be expected to interfere with enforcement proceedings.” Id. at Ex. 3. On July 20, 2017, Plaintiffs appealed to the DOJ's Office of Information Policy. Id. at Ex. 4. A month later, the Office of Information Policy affirmed the Criminal Division's decision, explaining that the Criminal Division properly withheld the records pursuant to Exemption 7(A) because “it is reasonably foreseeable that disclosure of this information would harm the interests protected by this provision.” Id. at Ex. 5.

         Plaintiffs brought this FOIA action against the DOJ, seeking to compel disclosure of documents relating to the agency's investigation of BNPP's evasion of Sundanese sanctions. See generally Compl. The DOJ filed a Motion for Summary Judgment. See Mem. of P. & A. in Support of Def.'s Mot. for Summ. J., ECF No. 21 [hereinafter Def.'s Mem.]. In its motion, the DOJ primarily invoked Exemption 7(A), asserting that “all responsive records” were exempted under this subsection “because their release would likely cause harm to active and ongoing criminal investigations.” Id. at 5. The DOJ also invoked Exemptions 3, 4, 5, 6, 7(C), and 7(D) to withhold information within responsive records. Id. Plaintiffs filed a Motion in Opposition and Cross-Motion for Summary Judgment. See Pls.' Opp. to Mot. for Summ. J. and Pls.' Cross-Mot. for Summ. J., ECF No. 29.

         III.

         A court must grant summary judgment “if the movant shows that 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). A dispute is “genuine” only if a reasonable factfinder could find for the nonmoving party, and a fact is “material” only if it is capable of affecting the outcome of litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action' and directs the district courts to ‘determine the matter de novo.'” U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).

         The agency bears the burden of proving that it withheld information responsive to a plaintiff's FOIA request pursuant to a statutory exemption. Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice (CREW), 746 F.3d 1082, 1088 (D.C. Cir. 2014). “The agency may carry that burden by submitting affidavits that ‘describe the justification for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'” Id. (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). The agency's affidavits or declarations must “describe the documents and the justifications for nondisclosure with reasonably specific detail” and “demonstrate that the information withheld logically falls within the claimed exemption.” Military Audit Project v.

         Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Further, they must not be “controverted by either contrary evidence in the record [or] by evidence of agency bad faith.” Id. (citations omitted); Beltranena v. Clinton, 770 F.Supp.2d 175, 181-82 (D.D.C. 2011). A court may grant summary judgment in a FOIA case by relying solely on information included in the agency's affidavits or declarations if they are “relatively detailed and non-conclusory.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation and internal quotation marks omitted).

         “To successfully challenge an agency's showing that it complied with the FOIA, the plaintiff must come forward with specific facts demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records.” Span v. U.S. Dep't of Justice, 696 F.Supp.2d 113, 119 (D.D.C. 2010) (citation and internal quotation marks omitted).

         IV.

         The court finds that Defendant's justification for categorically withholding all records under Exemption 7(A) is insufficient and does not extinguish all genuine issues of ...


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