United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. MEHTA UNITED STATES DISTRICT JUDGE
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).
the court are the parties' cross-motions for summary
judgment. For the reasons discussed below, the parties'
motions are denied.
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.
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.
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)).
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
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).
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).
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