United States District Court, District of Columbia
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,
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
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.
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,  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. See Tokar
I, 304 F.Supp.3d at 86-87.
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. 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
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.
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.
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. Id. at 90-92, 94-102. But it
affirmed the redactions made pursuant to Exemption 4.
Id. at 94 n.3.
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.
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.
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.
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
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 ...