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Buzzfeed, Inc. v. U.S. Department of Justice

United States District Court, District of Columbia

December 4, 2019

BUZZFEED, INC., Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION

          TREVOR N. McFADDEN, U.S.D.J.

         When Matthew Whitaker was the Attorney General's Chief of Staff and then the Acting Attorney General, he had to submit financial disclosure forms with the Office of Government Ethics. Like those of other executive agency filers, Whitaker's forms are a matter of public record under the Ethics in Government Act of 1978. See 5 U.S.C. App. 4 § 105. But Whitaker's forms underwent several rounds of revision before final approval, and those drafts were never disclosed. BuzzFeed believes they should be, so it sued the Department of Justice to force their disclosure under the Freedom of Information Act.

         DOJ maintains that all draft versions of Whitaker's forms are exempt from FOIA release. DOJ claims that the forms are privileged because they were revised through a “deliberative process, ” and that they contain private financial information. After reviewing the parties' cross-motions for summary judgment, the Court is unpersuaded by DOJ's “deliberative process” arguments. More, though the Court agrees that portions of the forms contain private financial information, some portions can be released without infringing Whitaker's privacy. For the following reasons, the Court will grant summary judgment in part and deny it in part for each party.

         I. BACKGROUND

         In early November 2018, Jeff Sessions announced his resignation as Attorney General of the United States and the President announced that Matthew Whitaker, then the DOJ Chief of Staff, would become the Acting Attorney General. Compl. ¶¶ 6-9. About two weeks later, DOJ publicly released Whitaker's New Entrant and Annual Public Financial Disclosure Reports, submitted on Office of Government Ethics (“OGE”) Form 278e. Id. ¶ 32. Both reports were revised five times before they were finished and made public. Id. ¶ 33. The day after their public release, a BuzzFeed reporter sent DOJ a FOIA request for all “original and amended versions” of the forms from the previous year. Id. ¶ 34. After some fruitless back-and-forth with DOJ, BuzzFeed filed this lawsuit seeking the draft reports. See id. ¶¶ 35-56.

         II. LEGAL STANDARDS

         Congress enacted FOIA to promote governmental transparency. See 5 U.S.C. § 552; Judicial Watch, Inc. v. U.S. DOD, 913 F.3d 1106, 1108 (D.C. Cir. 2019). FOIA creates “a statutory right of public access to documents and records held by federal agencies.” Stein v. U.S. SEC, 266 F.Supp.3d 326, 335 (D.D.C. 2017) (citation omitted). The Supreme Court has described FOIA as “a means for citizens to know what their Government is up to” and “a structural necessity in a real democracy.” Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-72 (2004) (cleaned up).

         At the same time, Congress also recognized that “legitimate governmental and private interests could be harmed by release of certain types of information, ” FBI v. Abramson, 456 U.S. 615, 621 (1982), which is why federal agencies must “disclose information to the public upon reasonable request unless the records at issue fall within specifically delineated exemptions, ” Judicial Watch, Inc. v. FBI, 522 F.3d 364, 365-66 (D.C. Cir. 2008); see 5 U.S.C. § 552(b). Those nine exemptions “are explicitly made exclusive and must be narrowly construed.” Milner v. Dep't of the Navy, 562 U.S. 562, 565 (2011) (cleaned up).

         The “vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment is appropriate where “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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

         If a government agency withholds records, in whole or in part, it “bears the burden of proving the applicability of claimed exemptions.” Am. Civ. Liberties Union v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). All “underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.” Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C. 1996) (citations omitted). The agency may submit affidavits or declarations and, if necessary, a Vaughn Index that lists “in detail which portions of the documents are disclosable and which are allegedly exempt.” Vaughn v. Rosen, 848 F.2d 820, 827 (D.C. Cir. 1973).

         The Court may grant summary judgment “on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Aguiar v. DEA, 865 F.3d 730, 734-35 (D.C. Cir. 2017) (citation omitted). If the agency's affidavit meets these criteria, “then summary judgment is warranted on the basis of the affidavit alone.” Am. Civ. Liberties Union, 628 F.3d at 619 (citation omitted). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible.” Id. (cleaned up).

         III. ANALYSIS

         The Supreme Court has repeatedly explained “the basic policy that disclosure, not secrecy, is the dominant objective” of FOIA. See Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)). “Important interests are served by [FOIA's] exemptions, ” which are “as much a part of [its] purposes and policies as the statute's disclosure requirement.” Food Mktg. Inst. v. Argus Leader Media, 139 S.Ct. 2356, 2366 (2019) (cleaned up). But in keeping with FOIA's “goal of broad disclosure, these exemptions have been consistently given a narrow compass.” U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989).

         The only issue here is DOJ's withholding of 14 versions-seven each of the New Entrant and Annual reports-of Matthew Whitaker's draft OGE Form 278e. See Def.'s Mot. for Summ. J. (“Def.'s Mot.”) 6, ECF No. 17-1. DOJ argues that the withholdings are justified under Exemption 5's deliberative process privilege and Exemption 6's personal privacy protections. See id. DOJ also claims it is impossible to segregate exempt and non-exempt portions of the draft forms “without revealing the specific items that were changed.” Id. at 15. BuzzFeed disagrees. See Pl.'s Cross-Mot. for Summ. J. (“Pl.'s Cross-Mot.”), ECF No. 18. The Court addresses each exemption below. Ultimately, the Court agrees in part with both parties.

         A. Exemption 5 is Inapplicable Because the Drafts Reveal No. DOJ Deliberations

         Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). “Exemption 5 incorporates the privileges that the Government may claim when litigating against a private party.” Abtew v. U.S. Dep't of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015) (citation omitted). In other words, it stands for the idea that “[t]he public is entitled to all such memoranda or letters that a private party could discover in litigation with the agency.” EPA v. Mink, 410 U.S. 73, 86 (1973) (citations omitted).

         The only Exemption 5 privilege that DOJ claims here is the deliberative process privilege, see Def.'s Mot. at 8-11, which protects “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated, ” Abtew, 808 F.3d at 898 (citation omitted). And the privilege is not strictly limited to opinions. It is also “broad enough to protect those facts intertwined with the opinions or tending to reveal the deliberative process.” Brinton v. Dep't of State, 636 F.2d 600, 606 (D.C. Cir. 1980).

         “Documents which are protected by the privilege are those which would inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is as yet only a personal position.” Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). The privilege reflects the policy that “officials should be judged by what they decided, not for matters they considered before making up their minds.” Abtew, 808 F.3d at 898 (citation omitted). In this way it “protects agencies from being ...


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