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Tokar v. U.S. Department of Justice

United States District Court, District of Columbia

December 19, 2019

DYLAN TOKAR, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION, RE DOCUMENT, GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT NOS. 30, 32

          RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This case concerns a pair of Freedom of Information Act (“FOIA”) requests made by Plaintiff Dylan Tokar, a journalist who wrote about the Foreign Corrupt Practices Act (“FCPA”) for the trade publication Just Anti-Corruption. As part of his research, he sought a variety of records from the Defendant, the U.S. Department of Justice (“DOJ”). When he failed to receive any of the documents to which believed himself entitled, Mr. Tokar filed suit in this Court. Subsequently, after DOJ produced some redacted responses, both parties moved for summary judgment-DOJ arguing that its obligations were met, Mr. Tokar challenging the breadth of the redactions. In resolving those motions, this Court found that some of DOJ's redactions were not justified and ordered further disclosures. See generally Tokar v. U.S. Dep't of Justice (Tokar I), 304 F.Supp.3d 81 (D.D.C. 2018). Now, after another round of production guided by the Court's earlier opinion, both parties file renewed cross-motions for summary judgment. For the reasons explained below, the Court (1) denies Mr. Tokar's motion and (2) grants DOJ's motion in part and denies it in part.

         II. BACKGROUND

         As explained in Tokar I, Mr. Tokar was interested in the selection process for FCPA “corporate compliance monitors, ” the third-party observers often appointed under so-called deferred prosecution agreements. These monitors are generally hired and paid by a company under scrutiny for violations; they typically help investigate the causes of compliance failures and help implement policies to reduce the risk of future misconduct. After public criticism of monitor selection practices, [1] DOJ issued the “Morford Memorandum, ” which proposed various mechanisms to avoid conflicts of interest. One specific recommendation was that DOJ create a centralized Standing Committee responsible for the selection of monitors; another was that monitors be selected from a pool of at least three qualified candidates wherever possible.[2] See Tokar I, 304 F.Supp.3d at 86-87.

         Curious about how the proposals from the Morford Memorandum were being implemented, Mr. Tokar made a series of FOIA requests. Id. at 87. He initially sought a broad swath of documents relating to appointment of monitors under fifteen specific FCPA settlement agreements.[3] Id. at 87. Specifically, he sought “[a]ll documents submitted by counsel for the companies at the outset of each monitor selection process, including the names of up to three qualified monitor candidates whom the companies are allowed to recommend, ” “[a]ll Monitor Selection Memoranda, including any files, documents and attachments therein, submitted to the Standing Committee for review, ” and “[r]ecords of the Standing Committee, including its membership, attendance records, appointments of temporary designees, voting records and recusals in connection with the consideration of monitor candidates.” Id.

         After negotiations with DOJ, which pointed out that many of these documents would be subject to multiple FOIA exemptions, Mr. Tokar agreed to narrow his request to the following:

1. The names of the up to three monitor candidates and their associated law or consulting firms submitted to the Department by the defendant corporations under the terms of their negotiated resolutions.
2. The names and titles of members of the Criminal Division's Standing Committee on the Selection of Monitors for the period Jan. 1, 2009 up through the present date. Along with the names of the members of the committee, please give their dates of service . . . [and] the names of any temporary designees appointed to the committee and the dates of their service.

Id. at 88. Some months later, DOJ informed Mr. Tokar that it would be informing the fifteen companies of his request and giving them an opportunity to object, in accordance with Executive Order 12, 600 and 28 C.F.R. § 16.8. Id. Fourteen companies ultimately did submit objections; Mr. Tokar promptly filed a second FOIA request for copies of these submissions. Id. After further months without a response to either request, Mr. Tokar filed this suit. Id.

         Eventually, DOJ provided a summary table containing the information listed in the first (narrowed) FOIA request, but “with certain information-the names of the monitor candidates who were nominated but not selected, the firms these candidates worked for if those firms were small, and the names of two members of the DOJ Standing Committee”-redacted for personal privacy reasons pursuant to FOIA Exemptions 6 and 7(C). Id. Later, in response to Mr. Tokar's second request, it provided copies of the 28 C.F.R. § 16.8 response letters, with certain information withheld under Exemptions 4, 6, and 7(C). Id. at 89. Specifically, under Exemptions 6 and 7(C), DOJ continued to redact the names of non-selected monitor candidates, and also withheld the names of the private attorneys who had responded to the notices on behalf of their corporate clients and the names of two DOJ employees who processed the submissions. Id. And under Exemption 4, which allows for the withholding of confidential commercial information, DOJ redacted details of one corporation's compliance program. Id. at 94.

         On summary judgment, Mr. Tokar first argued that DOJ was required to provide not just a table listing the names of the monitor candidates and members of the Standing Committee, but also the underlying documents used to create the table. Id. at 90. He also challenged the justification for the redactions under Exemptions 6 and 7(C). Id. In ruling, this Court agreed that (1) Mr. Tokar's narrowed request should have been construed as a request for the actual underlying documents and (2) that the withholding of the names of the non-selected monitor candidates, their firms, the private attorneys responding to response letters, and the two DOJ processing attorneys was not justified.[4] Id. at 90-92, 94-102. But it affirmed the redactions made pursuant to Exemption 4. Id. at 94 n.3.

         After a subsequent round of production and negotiations guided by the Court's opinion, the parties brought the present cross-motions for summary judgment. DOJ argued that it had met its obligations and that certain remaining withholdings were justified under Exemptions 4, 5, 6, and 7(C). See generally Def.'s Mot. Summ. J., ECF No. 30.[5] For his part, Mr. Tokar raised two specific objections. See Mem. Opp. Def.'s Mot. Summ. J. & Supp. Pl.'s Cross-Mot. Summ. J. (“Pl.'s Opp.”) at 7, ECF No. 32-1. First, he challenged DOJ's withholding (as “non-responsive”) of certain emails contained within larger, concededly responsive email chains; Mr. Tokar argued that each chain-rather than each email-constituted a single record and that DOJ was not permitted to redact a subset of non-responsive information from a record deemed responsive overall. Pl.'s Opp. at 13-14 (citing Am. Immigration Lawyers' Ass'n v. Exec. Office for Immigration Rev., 830 F.3d 667, 670 (D.C. Cir. 2016)). Second, he challenged the continued withholding-under Exemptions 6 and 7(C)-of (1) the names of certain DOJ line attorneys involved in monitor selection and (2) information about the monitor candidates, “including information related to their professional client representations.” Pl.'s Opp. at 20-21. Mr. Tokar explicitly did not challenge the adequacy of DOJ's search for responsive records, or DOJ's assertion of Exemptions 4 and 5 as to portions of certain records. Id. at 7.

         Perhaps appreciating the strength of Mr. Tokar's arguments, DOJ reconsidered its position mid-briefing and made a supplemental production before filing its reply. See Def.'s Reply at 2, ECF No. 34. It released the unresponsive emails contained within the larger chains, thereby effectively mooting Mr. Tokar's first objection. Id. at 2. DOJ also released the names of its line attorneys involved in monitor selection. Id. at 2-3. And finally, it released some additional information about monitor candidates' former corporate clients, id. at 3, although it “continued to withhold, pursuant to Exemption 6 and 7(C), the names of private individuals whom the monitor candidates represented in prior, unrelated criminal matters, ” id. at 4.

         In his reply, Mr. Tokar disputes that these concessions are enough to resolve the case. First, he strongly criticizes DOJ's evolving position on the “non-responsive” emails, suggesting it was a strategic ploy that wasted his and this Court's resources. See Pl.'s Reply at 6, ECF No.

         36. More substantively, he challenges DOJ's continued withholding of certain information about the monitor candidates' former clients, id. at 8-9, and claims that DOJ is still improperly redacting the names of some relevant ...


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