Wright v. Fbi ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROBERT G. WRIGHT, JR.,
Plaintiff,
Civil Action No. 02-915 (GK)
V.
FEDERAL BUREAU OF
INVESTIGATION,
Defendant.
JOHN VINCENT,
Plaintiff,
Civil Action No. 03-226 (GK)
V.
FEDERAL BUREAU OF
INVESTIGATION,
Defendant.
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REDACTED MEMORANDUM OPINION
This is a sad and discouraging tale about the determined
efforts of the FBI to censor various portions of a 500-page
manuscript, written by a former long-time FBI agent, severely
criticizing the FBI's conduct of the investigation of a money
laundering scheme in which United States-based members of the Hamas
terrorist organization were using non-profit organizations in this
country to recruit and train terrorists and fund terrorist
activities both here and abroad. The FBI also sought to censor
answers given by both Plaintiffs to a series of written questions
presented to them by a New YorK Times reporter concerning Wright's
allegations about the FBI’s alleged mishandling of the
investigation. In its efforts to suppress this information, the
FBI repeatedly changed its position, presented formalistic
objections to release of various portions of the documents in
guestion, admitted finally that much of the material it sought to
suppress was in fact in the public domain and had been all along,
and now concedes that several of the reasons it originally offered
for censorship no longer have any validity.
Unfortunately, the issues of terrorism and of alleged FBI
incompetence remain as timely as ever.
* * *
Plaintiffs are Robert G. Wright, Jr., a FBl Special Agent
based in Chicago, and John Vincent, a retired FBI Special Agent,
who were both members of the FBI's Counter-Terrorism Task Force.
Plaintiffs were denied permission, pursuant to the FBI’s
prepublication review policy, to publish certain writings critical
of the FBI’s counter-terrorism efforts. They bring these separate
lawsuits against the Defendant, Federal Bureau of Investigation
(“FBI” or “Government”). vincent has also named the Department of
Justice (“DoJ”) as a Defendant.1 In their Second Amended
1 The Court uses the term “Defendants” throughout this
Opinion to refer to the FBI and the DoJ. Where only Plaintiff
(continued...)
_.2_
Complaint, both Plaintiffs alleged the same causes of action: that
Defendants violated the First Amendment (Count I), 28 C.F.R. §
l7.l8 (the FBl’s prepublication review regulation) (Count lI), and
the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A), (B), and
(D) (Count III). After this Court’s Opinions on July 31, 2006 and
February 24, 2009, two Counts remain: (l) Count l and (2) the
portion of Count III based on Section 706(2)(B) of the APA.
Plaintiffs seek: (l) a declaratory judgment that Defendants’
refusal to grant them permission to publish their writings was
unlawful; (2) an injunction prohibiting Defendants from continuing
to refuse then1 permission. to publish their writings; and (3)
attorneys’ fees and costs.
This matter is now before the Court on Defendants’ Renewed
Motions for Summary Judgment [Dkt. No. 762] and Plaintiffs’ Renewed
Motions for Summary Judgment [Dkt. No. 9O].3 Upon consideration of
the Motions, Oppositions, Replies, and the entire record herein,
including the sealed in camera submissions, and for the reasons
stated below, Defendants’ Renewed Motions for Summary Judgment
l(...continued)
Wright’s submissions are concerned, however, the term refers to
only the FBI.
2 For the sake of simplicity, Docket Numbers refer only to
Wright, 02-9l5.
3 Although these cases have not been consolidated, the
Court has addressed the Renewed Motions for Summary Judgment in
both cases in this single Memorandum Opinion because almost all the
legal issues and many of the facts overlap.
_3_
[Dkt. No. 76] are granted in part and denied in part with respect
to the Fatal Betrayals manuscript, denied with respect to the
Miller interview questions, and denied with respect to the OIG
complaints. Plaintiffs’ Motions for Summary Judgment [Dkt. No. 90]
are granted in part and denied in part with respect to the Fatal
Betrayals manuscript, granted with respect to the Miller interview
questions, and granted with respect to the OIG complaints. An
Order shall accompany this Memorandum Opinion.
I. BACKGROUND4
A. Factual Background5
Upon joining the FBI, Plaintiffs signed an agreement requiring
them to seek prepublication review from the Office of Public and
Congressional Affairs (“OPCA”) of a broad category of information
before disclosing it publicly. The agreement states,
as consideration for employment, I agree that
I will never divulge, publish, or reveal
to any unauthorized recipient without official
written authorization by the Director of the
FBI or his delegate, any information from the
investigatory files of the FBI or any
information relating to material contained in
the files, or disclose any information or
produce any material acquired as a part of the
performance of my official duties or because
of my official status . . . 1 agree to request
approval of the Director of the FBI in each
4 Unless otherwise noted, this section contains only
uncontroverted facts.
5 This section is a condensed version of the Background
section in the July 3l, 2006 Opinion.
_.4_
such instance by presenting the full text of
my proposed disclosure in writing . . . at
least thirty (30) days prior to disclosure. I
understand that this agreement is not intended
to apply to information which has been placed
in the public domain
Defs.’ Vincent Mot., Ex. l9.
In addition, the FBI had adopted ea prepublication review
policy, which is mandatory for all current and former FBI
employees. Its purpose is to “identify information obtained during
the course of an individual employee’s employment/work with the
FBI, the disclosure of which could harm national security, violate
federal law, or interfere with the law enforcement functions of the
FBI.” Id., Ex. l.
Pursuant to the prepublication review policy, Wright sought
permission to publish: (l) his five-hundred page manuscript
(“Fatal Betrayals manuscript”) about an investigation (“Vulgar
Betrayal investigation”) into known terrorist threats against
United States national security and the FBI’s efforts to thwart
that investigation; (2) his answers from an interview with New York
Times reporter Judith Miller; (3) a thirty-eight page complaint
filed with the DoJ Office of Inspector General (“OIG”), titled
“Dereliction of Duty by the Federal Bureau of Investigation in
Failing to Investigate and Prosecute Terrorism and Obstruction of
Justice in Retaliating Against Special Agent Robert G. Wright,
Jr.”; and (4) a 113 page complaint6 titled “Whistleblowing
Retaliation by the Federal Bureau of 1nvestigation against Special
Agent Robert G. Wright, Jr.” (referred to together herein as “OIG
complaints”). Wright sought permission to publish his Fatal
Betrayals manuscript and his OIG Complaints. Vincent sought
permission to publish only his answers from his interview with
Judith Miller.
Both Plaintiffs worked on the Vulgar Betrayal investigation,
which uncovered a money laundering scheme in which United States-
based members of the HAMAS terrorist organization were using
nonprofit organizations to recruit and train terrorists and fund
terrorist activities in the United States and abroad. The Vulgar
Betrayal investigation ultimately resulted in the FB1’s seizure of
$1.4 million in funds which were targeted for terrorist
activities.7 The seized funds were linked directly to Saudi
businessman Yassin Kadi, who was later designated by the Government
as a financial supporter of Osama Bin Laden. Plaintiffs’
submissions were highly critical of the FB1’s handling of the
6 According to the Second Amended Complaint, this document
was to be filed with the DoJ OIG “at a later date.” Second Am.
Compl. I 19.
7 Defendants agree that the Vulgar Betrayal investigation
was shut down in 1999 and officially closed in August 2000.
_.6_
Vulgar Betrayal investigation and other FBl operations which took
place prior to September 11, 2001.8
Wright submitted his Fatal Betrayals manuscript for
prepublication review in the beginning of October 2001.9 In the
beginning of January 2002, the FBl informed him that about 18
percent of the manuscript would require modifications because it
contained “classified information; information containing sensitive
investigative material and information protected by the Privacy
Act.” In accordance with the FB1’s suggestions, Wright edited and
resubmitted his materials, with the 18 percent either deleted or
modified to address the Government’s concerns. 1n support of his
revisions, Wright submitted three binders full of endnotes, which
he alleges provided a public source of information for each of the
passages to which Defendants had objected.
On November 13, 2001, Wright submitted his OIG complaints to
OPCA for prepublication review. On January 7, 2002, OPCA
responded, taking issue with only 4 percent of the first document
and 6 percent of the second. On January 18, 2002, Wright re-
submitted the documents with deletions and edits responsive to
OPCA’s concerns.
3 Wright completed his manuscript days after the attacks on
September 11, 2001.
9 wright resubmitted his manuscript in November 2001, after
being informed that delivery of the first copy was delayed by
disruptions in mail flow due to anthrax incidents.
._7_
In March 2002, New York Times reporter Judith Miller submitted
a series of written questions to Wright concerning his allegations
about the FB1's mishandling of the Vulgar Betrayal investigation.
She gave Vincent a similar series of questions. 1n March of 2002,
Miller also interviewed FBI officials, including Wright’s
supervisor, about Wright’s charges against the agency. On March
31, 2002, both Wright and Vincent submitted to OPCA their proposed
answers to Miller’s questions for prepublication review.
On May 10, 2002, the day after Wright filed suit in this
Court, the FBl responded separately to Wright and Vincent regarding
all of their submissions. The FBI indicated to both of them that
as a result of its review and guidance from the U.S. Attorney’s
Office for the Northern District of lllinois,w all of Plaintiffs’
submissions contained information regarding open investigations,
matters occurring before a grand jury, and information relating to
law enforcement techniques and other sensitive information.
According to the FB1, the protected information was so intertwined
with other unprotected material in the submissions, that they could
w At some point, the FB1 consulted with the U.S. Attorney’s
Office for the Northern District of 1llinois because that office
had “participated in the investigation(s), possessed a detailed
knowledge of the investigation(s), and had an interest in the
success of the investigation(s).” Pl. Vincent's Original Mot. at
11. The FB1 also consulted with the U.S. Attorney’s Office for the
Eastern District of Wisconsin. Both offices informed the FBl that
Plaintiffs’ submissions were not suitable for publication. 1d4 at
11, 20.
_8_.
not be amended or segregated so as to be suitable for publication.H
The FB1 therefore reversed its prior position and denied Wright
permission to publish any of the materials he had submitted, and
issued a blanket denial as to Vincent's interview answers.
1n early June 2002, both Wright and Vincent appealed these
decisions to the FBl Director, Robert Mueller, and their appeals
were denied.
On November 7, 2002, and January 6, 2003, respectively,
Plaintiffs Wright and Vincent appealed to the Office of the Deputy
Attorney General pursuant to 28 C.F.R. § l7.18(i). On December 19,
2002, and January 17, 2003, respectively, Deputy Attorney General
David Margolis responded, indicating that an appeal to his office,
which handled appeals of FBI decisions prohibiting disclosure of
classified information, was inappropriate because “no classified
information” was contained in Plaintiffs’ submissions.
Approximately fifteen months later, the FB1 changed its
position yet again. On October 31, 2003, more than two years after
Wright first submitted the Fatal Betrayals manuscript for
prepublication review, the FBl sent him a letter explaining that
“following a request from. a Congressional committee for the
“ The FB1 did not provide specific objections by line and
paragraph number, as required by the FB1’s Manual of Administrative
Operations and Procedures (“MAOP”). MAOP Part 1, Section
4(a)(3)(d) (The prepublication review panel must “either authorize
disclosure in full or provide written objections to specific
portions (by page and paragraph number) specifying why the FBI
should withhold permission to disclose”).
_9._
[manuscript] another review had been conducted . . . and that it
ll
had been determined that Chapters 1-4 (inclusive) and parts of
Chapter 7 could be published. The FB1 still prohibited publication
of Chapters 5-6 and 8 through 27.
On December 22, 2003, approximately one year and seven months
after its blanket denial of Vincent's request, the FBl sent him a
letter stating that the answers to many of the interview questions
previously submitted (2-6, 8-9, 11-14, l6, 18-19, and 21) could be
disclosed in their entirety, and that the answers to questions 15
and 17 could be disclosed in part. On May 4, 2004, the FBI granted
Vincent permission to publish the response to interview question 15
in full. The FBI continued to prohibit publication of five of
Vincent's interview answers: 1, 7, l0, part of 17, and 20.
On February 5, 2004, the FBI changed its position one more
time and sent Wright a letter advising him that it had conducted a
re-review of his answers to Judith Miller’s interview questions and
had determined that answers 2-6, 8, 11-l3, 15-16, 18-19, 2l, 25-26
and parts of 1, 9, and 14 could be published.
Finally, on March 25, 2004, the FB1 sent Wright a letter
stating that his OIG complaints could be submitted to the DoJ OIG
without the need for prepublication review, but that release to any
other party was prohibited.”
m Wright’s OlG complaints had already been submitted to the
OlG in 2001. See Wright Decl. at T 43.
__:LO_
B. Procedural Background
Plaintiff Wright filed his Complaint in this Court on May 9,
2002, an Amended Complaint on December 6, 2002, and. a Second
Amended Complaint on August 18, 2003. Plaintiff Vincent filed his
Complaint in this Court on February 12, 2003.
On July 31, 2006, the Court denied Plaintiffs’ Motions for
Summary Judgment, granted Defendants’ Motions for Summary Judgment
with respect to Plaintiffs’ claims under 28 C.F.R. § 17.18 (Count
11) and the Administrative Procedure Act, 5 U.S.C. § 706(2)(A),
(B), and (D) (Count 111), and denied Defendants’ Motions with
respect to Plaintiffs’ First Amendment claims (Count 1) [Dkt. Nos.
69, 70] (“July 31, 2006 Opinion). 1n that ruling, the Court also
denied Plaintiffs’ Motions for Summary Judgment.
Plaintiffs filed a Motion for Reconsideration, asking the
Court to reconsider its decision to grant Defendants’ Motion for
Summary Judgment with respect to all APA claims. Plaintiffs argued
that since the Opinion intended to preserve all constitutional
claims, Defendants’ Motion should have been denied with respect to
Section 706(2)(B) of the APA, thereby allowing Plaintiff to
challenge agency action that is “contrary to constitutional right,
power, privilege, or immunity.” 5 U.S.C. § 706(2)(B). On February
24, 2009, the Court granted Plaintiffs’ Motions for
Reconsideration. As a result, Count 111 was reinstated for claims
based on Section 706(2)(B) of the APA.
_ll_
Defendants filed their Renewed Motion for Summary Judgment on
September 9, 2006 [Dkt. No. 76]. 1n the alternative, the Motion
requested a stay in the proceedings until the conclusion of the
proceedings in United States v. Marzook, No. 03-CR-978 (N.D. 1ll.),
in the Northern District of 1llinois. Defs.' Renewed Mot. at 1.
Plaintiffs’ response was originally due on October 30, 2006, but
Plaintiffs filed and were granted eight Motions for Extension of
Time. On February 14, 2007, Plaintiffs filed their Opposition and
Cross Motion for Summary Judgment [Dkt. Nos. 88, 90]. On March 14,
2007, Defendants filed a Reply and an Opposition [Dkt. Nos. 94,
95], and on March 23, 2007, Plaintiffs filed a Reply [Dkt. No. 96].
On February 26, 2008, the Court stayed the case until April 1,
2008, pending the filing of the appellate briefs in the appeal of
the Marzook case [Dkt. No. 101]. On April 4, 2008, after a delay
in the filing of the briefs, the Court continued the stay until
April 30, 2008, On May 21, 2008, after yet another delay in the
filing of the briefs, the Court continued the stay until June 30,
2008, and set a Status Conference for July 8, 2008 [Dkt. No. 108].
Two Status Conferences were held in July 2008, one on July 8
and one by phone on July 28. At the July 8, 2008 Status
Conference, Defendants argued that releasing the information in
Plaintiff Wright’s manuscript could affect the Marzook appeal. To
support this argument, they offered to provide an affidavit from
the Assistant U.S. Attorney for the Northern District of 1llinois.
_12_
1n response, Plaintiffs argued that further delay would be
inappropriate and that the case should be adjudicated immediately.
Following this Status Conference, on July 8, 2008, the Court
ordered Defendants to submit an affidavit from the Assistant U.S.
Attorney assigned to the Marzook case by July 18, 2008 [Dkt. No.
110].
On July 18, 2008, Defendants filed two affidavits. 1n the
first, David Hardy, an employee in the Records Management Division
at the FB1, stated that “[i]n the event that the Marzook
prosecutors lift some or all of their objections to the release of
related information contained in plaintiff’s manuscript, the FB1
will release a new version to plaintiff which would allow release
of that previously redacted information.” On the other hand,
redactions “that were not at the request of the Marzook
prosecutors” would remain redacted.
The second affidavit was submitted in camera by Joseph M.
Ferguson, the Assistant U.S. Attorney handling the Marzook appeal.
He stated that publishing the manuscript would interfere with the
Marzook appeal and a pending civil forfeiture matter.
Plaintiffs responded to the two filings on July 25, 2008,
They argued that the narrow issue on appeal -- whether the judge in
the Northern District of 1llinois had “properly applied the
Sentencing Guidelines” -- would not be affected by the publishing
of Plaintiff Wright’s manuscript,
__13_
1n the telephonic Status Conference on July 28, 2008,
Defendants again asked for an extension of the stay, this time
until September 15, 2008.” Although Defendants conceded that the
only issue on appeal was a sentencing issue, they argued that an
extension of the stay was warranted because the sentencing involved
a terrorism enhancement.
During this telephonic conference call, the Court expressed
its deep concern about the enormous delays and their impact on
Plaintiffs’ First Amendment rights. On August 5, 2008, Defendants’
Motion to Stay was terminated.
On November 4, 2008, the Court ordered Defendants to submit a
second declaration from the U.S. Attorney’s Office. After
requesting and receiving one extension of time, Defendants filed a
second in camera declaration from Assistant U.S. Attorney Ferguson
on December 1, 2008. More than two years after making their
original request for a stay, Defendants withdrew their assertions
that publishing the manuscript would interfere with the Marzook
appeal, and presented a new excuse for requesting an extension of
the stay -- namely that it was needed because of a pending civil
forfeiture action.
A Status Conference was held on January 6, 2009. Plaintiffs
again argued that the Government had not provided reasonably
w Defendants represented that the appellate brief in the
Marzook appeal was due on September 8, 2008.
_14_
specific justifications to support their argument that the
publication of the manuscript should be delayed. Moreover, they
argued that the government had not shown “urgency” in handling the
matter. 1n response, the Government argued that the lengthy stay
was not an intentional delay tactic but was instead due to
scheduling difficulties in the Northern District of 1llinois.
At the conclusion of the Status Conference, the Court ordered
the parties to confer prior to February 2, 2009 and ordered the
Government to make a “specific offer of the redactions that it
believes are necessary prior to publication” of Plaintiff Wright’s
manuscript.
At a Status Conference on February 2, 2009, the Government
stated that Assistant U.S. Attorney Ferguson had -- finally --
dropped his objections to the release of the manuscript and that it
would therefore be able tx) make a final determination ¢of its
objections to the manuscript. 1t also argued that Plaintiffs had
not carried their burden of showing that certain information was in
the public domain. Plaintiffs argued that the Motions should be
decided promptly and that the Government, and not Plaintiffs, bore
the burden of proving that information was in the public domain.
At the conclusion of the Status Conference, the Court ordered
each party to file a sealed submission no later than February 16,
2009 “identifying the information that they agree is in the public
domain and identifying the specific information that remains in
._]_5_
dispute.” For information about which they disagreed, the Court
ordered Plaintiffs to provide “specific citations to the public
record.”
After the Court granted one extension of time, the parties
submitted a Joint Status Report on February 20, 2009. The Status
Report stated that the parties had resolved their dispute about the
endnotes in Plaintiff Wright’s manuscript and had agreed that every
endnote correlated to material in the public domain. 1t also
stated that the Government had provided Plaintiff Wright with its
remaining objections to the manuscript and noted that “[t]hese
sections are substantially fewer in number.” Finally, the parties
proposed that they submit a joint report “discussing the
significance of this development” on March 6, 2009.
On February 23, 2009, the Court ordered the parties to file a
Second Joint Status Report on March 6, 2009. The Order stated that
this Status Report “shall set forth with specificity and
appropriate case citations the legal positions of the parties with
regard to all factual information it contains.”
After the Court granted two extensions of time requested by
the Government -- the first unopposed and the second opposed --
Plaintiffs and Defendants filed separate status reports.M
“ Plaintiffs filed their status report on March 12, 2009.
Defendants requested a one-day extension and filed theirs on March
l3, 2009. Defendants also filed a Declaration of David Hardy under
seal on March l6, 2009 (“Hardy Decl.”) [Dkt. No. 137].
_16_
II. Standard of Review
A motion for summary judgment may be granted “only if” the
pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter
of law, _e§ Fed. R. Civ. P. 56(c), as amended December 1, 2007;
Arrinqton v. United States, 473 F.3d 329, 333 (D.C. Cir. 2006). 1n
other words, the moving party must satisfy two requirements: first,
demonstrate that there is no “genuine” factual dispute and, second,
that if there is, it is “material” to the case. “A dispute over a
material fact is ‘genuine’ if ‘the evidence is such that a
reasonable jury could return a verdict for the non-moving party.’”
Arrington, 473 F.3d at 333, quoting Anderson v. LibertV Lobbv,
1gg;, 477 U.S. 242, 248 (1986). A fact is “material” if it might
affect the outcome of the case under the substantive governing law,
Liberty Lobby, 477 U.S. at 248.
1n its most recent discussion of summary judgment, in Scott v.
Harris, __ U.S. __, 127 S. Ct. 1769, 1776 (2007), the Supreme Court
said,
\\
[a]s we have emphasized, [w]hen the moving
party has carried its burden under Rule 56(c),
its opponent must do more than simply show
that there is some metaphysical doubt as to
the material facts. . . . Where the record
taken as a whole could not lead a rational
trier of fact to find for the nonmoving party,
there is no ‘genuine issue for trial.’”
Matsushita Elec. 1ndustrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 . . . (1986)
_17..
(footnote omitted). “[T]he mere existence of
some alleged factual dispute between the
parties will not defeat an otherwise properly
supported. motion for summary judgment; the
requirement is that there be no genuine issue
of material fact.” Liberty Lobby, 477 U.S. at
247-48 (emphasis in original).
III. ANALYSIS
A. Censorship Standard Under the First Amendment
The Supreme Court has long recognized that expression about
public issues rests “on the highest rung of the hierarchy of First
Amendment values.” Care v. Brown, 447 U.S. 455, 467 (1980). The
constitutional protection for freedon1 of expression on public
matters, which was “fashioned to assure unfettered interchange of
ideas for the bringing about of political and social changes
desired by the people,” Roth v. United States, 354 U.S. 476, 484
(1957), is at the very core of our constitutional and democratic
system. Stromberq v. People of State of Cal., 283 U.S. 359, 369
(1931). Therefore, in addressing challenges under the First
Amendment, such as Plaintiffs make in this case, courts must keep
in mind that “debate on public issues should be uninhibited,
robust, and wide-open, and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on government and
public officials.” New York Times Co. v. Sullivan, 376 U.S. 254,
270 (1964) (citing Terminello v. Chicaqo, 337 U.S. 1, 4 (1949); Q§
Jonge v. Oregon, 299 U.S. 353, 365 (1937)).
_]_8_
The Supreme Court has also recognized, however, that the
speech of public employees on matters of public concern may be
curtailed in ways that, if imposed on the general public at large,
would violate the Constitution. Pickering v. Bd. of Education, 391
U.S. 563, 568 (l968); United States v. NTEU, 513 U.S. 454, 465
(1995). As the Court specifically noted in Pickering:
the State has interests as an employer in
regulating the speech of its employees that
differ significantly from those it possesses
in connection with regulation of the speech of
the citizenry in general. The problem
is to arrive at a balance between the
interests of the [employee], as a citizen, in
commenting upon matters of public concern and
the interest of the State, as an employer, in
promoting the efficiency of the public
services it performs through its employees.
391 U.S. at 568.
1n McGehee v. Casey, 718 F.2d 1137 (D.C. Cir. 1983), our Court
of Appeals fleshed out the contours of Pickering and articulated a
standard for judicial review of individual censorship decisions
made by the C1A pursuant to the type of secrecy agreement which is
at issue in this case. The Court discerned two consistent themes
from the post-Pickering Supreme Court cases, and found them most
clearly articulated in Brown v. Glines, 444 U.S. 348 (l980). Those
principles, upon which McGehee relied, at 718 F.2d 1142-43, are:
First, restrictions on the speech of
government employees must “protect a
substantial government interest unrelated to
the suppression of free speech” (quoting
Brown, 444 U.S. at 354). . . [and] Second, the
restriction must be narrowly drawn to
._]_9_
“restrict speech no more than is necessary to
protect the substantial government interest”
(quoting §rQwn, 444 U.S. at 355).
1n order to apply those principles, McGehee required agencies
to explain their justifications for censorship with “reasonable
specificity” and to demonstrate “a logical connection between the
deleted information and the reasons for the [censorship].”” 718
F.2d at 1148. The McGehee court concluded that the Government
satisfied this “reasonable specificity” standard by providing
“reasonably convincing and detailed evidence of a serious risk that
intelligence sources and methods would be compromised by” the
information the plaintiff sought to disclose. 718 F.2d at 1149.
McGehee also makes clear that the district court must
determine which portions, if any, of the requested material are
already in the public domain since the “government may not censor
ll
[information obtained from public sources] and “has no legitimate
interest in censoring unclassified materials.” 1d; Given that the
parties in this case have now, finally, resolved their dispute
about those sections of the manuscript which are already in the
public domain, see infra, 111.B, this issue need not be examined in
detail.
w The McGehee opinion often uses the words “classification”
and “censorship” interchangeably. §g§ 718 F.2d at 1148, where the
Court says the courts must satisfy themselves that the C1A in fact
had good reason “to classify and therefore censor” the material in
issue.
._20.._
More recently, in Weaver v. United States 1nformation Agencv,
87 F.3d 1429 (D.C. Cir. 1996), the Court of Appeals had another
opportunity to re-examine the thorny issue of censorship, by way of
pre-publication review, of government employees’ writings.
The Weaver court recognized that its McGehee opinion
“contain[ed] strands of both Pickering balancing and . .. the two-
part test set out in Brown [v. Glines1." 87 F.3d at 1440.
However, in the final analysis, Weaver incorporated the Brown v.
Glines two-part test into the Pickering balancing and embraced what
it referred to as “the test of Pickering and NTEU,” id.:
Restraints on the speech of government
employees on “matters of public concern” are
governed by a balancing test; they are
permissible where the government interest in
“‘promoting the efficiency of the public
services it performs through its employees’”
outweighs the interests of prospective
speakers and their audiences in free
dissemination of the speakers’ views. NTEU,
513 U.S. __, 115 S.Ct. at 1012-14 (quoting
Pickering, 391 U.S. at 568, 88 S.Ct. at 1735.
87 F.3d at 1439.
B. The Parties Agree that A1l Footnoted Material Is in the
Public Domain and that P1aintiffs Will Not Release the
Actual Names of Law Enforcement Officials who Are Not
Public Figures
Since the filing of their Renewed Motions for Summary
Judgment, the parties have reached agreement on two issues. First,
they now agree that “no factual dispute remains as to whether the
endnotes are based on public domain material,” and that all the
endnotes are in fact based on public domain material, as Plaintiff
_21_
Wright has consistently maintained. Joint Report in Response to
the Court’s Order of February 2, 2009 at 2.
Second, they agree that Plaintiffs will not release the actual
names of law enforcement officials who are not public figures. §§§
Pls.’ Second Status Report at 8 n.2 (Mar. 12, 2009). For these
officials, Plaintiffs agree to replace their names with pseudonyms
or to obtain written permission from these officials, prior to
publication, to use their actual names. lQ4 Defendants agree that
Plaintiffs may publish the actual names of law enforcement
officials who are public figures. Defs.' Second Status Report at
6 (Mar. 13, 2009). Therefore, these two issues have been resolved
and are no longer before the Court.
C. The Government Has Satisfied Its Burden to Justify
Censorship for Only One of Its Fourteen Objections to the
Fatal Betrayals Manuscript
After almost seven years of litigation and a number of
reversals of position, the Government has substantially reduced its
list of objections to the Fatal Betrayals manuscript. Only
fourteen remain.“ The Government attempts to justify its
16 Because the parties did not file their Second Status
Reports on the same day, as the Court required in its Order of
February 23, 2009 [Dkt. No. 128] (“[T]he parties shall file a
Second Joint Status Report”) (emphasis added), Plaintiffs’ Second
Status Report does not acknowledge all of the Government's
concessions. See Defs.' Second Status Report at 2, n.1 (Much of
Plaintiff’s status report . . . is erroneous because he had not
seen the Hardy Declaration.”). As a result, the list of issues
that remain in dispute is taken from Defendants’ Second Status
Report and the Hardy Declaration. Cf. Pls.’ Second Status Report
(continued...)
_22_
censorship requests by relying, in large part, on two FO1A
Exemptions: Exemption 7, protecting law enforcement techniques and
procedures; and Exemption 5, embodying the deliberative process
privilege."
However, Plaintiffs have relied upon the First Amendment, not
FO1A, Pls. Renewed Mot. at 2, and the Government has cited to no
case holding that FO1A is coterminous with the First Amendment.”
Any First Amendment analysis must be based on the principles set
forth in Pickering, NI§Q, and Weaver. Consequently, censorship is
prohibited under the First Amendment where it fails the
Pickering[NTEU balancing test, even if the material falls within a
FO1A Exemption. McGehee explicitly rejected the Government’s view
when it stated that “[b]ecause the present case implicates first
amendment rights, however, we feel compelled to go beyond the FO1A
standard of review for cases reviewing C1A censorship pursuant to
secrecy agreements.” 718 F.2d 1148.19 1n other words, not only was
the court not bound or limited by the FO1A Exemptions, but the
”(...continued)
at 6 (referring to twenty Government objections, rather than
fourteen).
" These two FO1A Exemptions are the only interests
presented by the Government to justify the censorship it seeks.
18 For reasons that are hard to fathom, Plaintiffs have
failed to object to the Government’s heavy reliance on FO1A. Nor
have Plaintiffs emphasized the primacy of their First Amendment
analysis.
w Neither party briefed this issue,
_23_
court required an even more searching examination in First
Amendment cases.
Consequently, censorship is prohibited, even if the material
falls within a FO1A Exemption, where the Government fails to show
with reasonable specificity that its interest in censorship of
Government employees, in order to promote the efficiency of public
services, outweighs the interest of prospective speakers in free
dissemination of those speakers’ views. While FO1A provides a
useful analytical tool for assessing the strength of the
Government’s interest under the Pickering[NTEU balancing test, it
cannot negate or override the First Amendment inquiry.”
1. Sensitive Law Enforcement Techniques and
Information
The Government objects to two paragraphs of the manuscript on
the ground that they contain information related to sensitive law
enforcement techniques and information. Defs.' Second Status
Report at 2; Hardy Decl. at 4-5. 1n response, Plaintiffs argue
that the Government’s justification for censorship is “vague” and
“inadequate.” Pls.’ Second Status Report at 6.
FO1A's Exemption 7, upon which the Government relies, states
in relevant part that requested materials may be withheld if they
are “records or information compiled for law enforcement purposes,
” Because the Government relies heavily, and almost
exclusively, on its FO1A arguments, they will be examined and
included in the Pickering[NTEU balancing.
._24_
but only to the extent that production of such law enforcement
records or information . . . would disclose techniques and
procedures for law enforcement investigations or prosecutions, or
would disclose guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to
risk circumvention of the law.” 5 U.S.C. § 552(b)(7).
The Government bears the burden of showing that materials fall
within Exemption 7, and it must provide a “clear demonstration of
how it has met that burden.” Summers v. Dep’t of Justice, 140 F.3d
1077, 1083 (D.C. Cir. l998). A threshold question is whether the
information was “compiled for law enforcement purposes.” Ctr. for
Nat’l Sec. Studies, 331 F.3d at 926 (citing 5 U.S.C. § 552(b)(7)).
Exemption 7 covers investigative law enforcement materials, as well
as non-investigative materials such as law enforcement manuals.
See Tax Analvsts v. 1RS, 294 F.3d 71, 79 (D.C. Cir. 2002) (holding
that an agency need not show that the materials were compiled in
the course of a “specific investigation”).
The Government alleges that the information on page 93 of the
manuscript would reveal sensitive law enforcement activities,
methods, and capabilities. Page 93 discusses the freezing of a
bank account. The Government justifies its objection by stating
that the “information discloses the effectiveness of the technique
used in bringing the [Vulgar Betrayal] investigation to a
successful conclusion” and that disclosing the information would
__25_
permit “those involved in criminal violations” to “change their
activities and modus operandi in order to avoid detection in the
future.” Hardy Decl. at 4. 1n response, Plaintiffs argue that the
techniques revealed are “common knowledge.” Pls.’ Second Status
Report at 7. The Government responds that Plaintiffs’ “mere
speculation” about whether a technique is common knowledge is “not
persuasive.” Defs.' Second Status Report at 8.
Plaintiffs correctly assert that these techniques are “common
knowledge.”“ 1t is well known that the Government froze bank
accounts as part of its counter-terrorism strategy. See, e.g.,
Joseph Kahn and Judith Miller, A Nation Challenqed: The Assetsj
U.S. Freezes More Accounts; Saudi and Pakistani Assets Cited for
Ties to Bin Laden, N.Y. TnMS, Oct. 13, 2001, at A1. 1n addition,
the paragraph preceding the one objected to on page 93 -- to which
the Government did not object and for which the manuscript includes
a citation to the public domain -- states openly that the Office of
Foreign Asset Control in the Treasury Department “ordered the
freeze of all of Mohammed and Azita Salah’s known bank accounts.”
§ee Hardy Decl., Ex. C. Finally, the paragraph to which the
Government objects reveals nothing substantive about a law
m The Government argues that “Plaintiff’s [sic] mere
speculation that a particular technique at a particular location is
common knowledge, offered without evidentiary support, is not
persuasive.” Defs.' Second Status Report at 8. However, as
discussed, supra, 111.A, it is the Government, not Plaintiffs, that
bears the burden of justifying censorship with reasonable
specificity.
._26_
enforcement practice, nor does it describe the effectiveness of
freezing bank accounts. 1nstead, it only describes the reaction of
a person affected by the successful use of that particular law
enforcement practice.
Because this information is “common knowledge” and does not
reveal the substance of a sensitive law enforcement technique, the
Government has not demonstrated that it has an interest in
censorship that outweighs the public interest in disclosure.
Accordingly, the Government has not satisfied the Pickering[NTEU
balancing test with respect to the information on page 93.
The Government also alleges that the information contained on
page 316 of the Fatal Betrayals manuscript references sensitive law
enforcement infrastructure. 1t argues that its objections are
warranted because
Plaintiffs offer no response to this
specific objection. See generally Pls.’ Second Status Report.
This portion of the manuscript refers to a “secured chamber”
and provides the specific location of that chamber. The
Government’s interest in protecting the confidentiality of this
secure location is clearly substantial. On the other side of the
Pickering[NTEU balance, Plaintiffs have not identified any interest
either they or the public have in disclosing the existence of this
_27_
chamber or its precise location. The balancing test therefore
tilts in favor of the Government with regard to the material on
page 316.
1n sum, the Government has satisfied the Pickering[NTEU
balancing test with respect to the material on page 316 of the
manuscript, but has failed to meet its burden under Pickering[NTEU
for the material on page 93 of the manuscript.
2. Deliberative Process Privilege
The Government objects to twelve other sections of the fatal
Betrayals manuscript on the ground that they would “reveal the
government’s deliberative process.”” Defs.' Second Status Report
at 2; Hardy Decl. at 5 (“The information reveals the formulation of
opinions, advice, evaluations, deliberations, policy formulation,
proposals, conclusions or recommendations associated with the
formulation and implementation of investigative and prosecutorial
strategies.”). The Government argues that revealing this
information would “chill the open and frank discussions . . . which
are necessary for the effective investigation and prosecution of
criminal and national security matters.” Hardy Decl. at 5. 1n
response, Plaintiffs argue that this justification is vague and
” Presumably, the Government is relying on Exemption 5 of
FO1A which permits an agency to withhold “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).
_28_
that “[n]o sensitive information of any kind is revealed.” Pls.’
Second Status Report at 7.
1t is not at all clear that the deliberative process privilege
applies in the First Amendment context, and the Government has
cited no cases in which it is so applied.” However, even if it is
applicable in the First Amendment context, to succeed in this case
the Government must demonstrate both that its claim falls within
the narrow bounds of the privilege and that it satisfies the
Pickering/NI§Q balancing test.
Three principal limitations narrow the scope of the
deliberative process privilege. First, the privilege covers only
“documents reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental
decisions and policies are formulated.” Dep't of 1nterior v.
Klamath water Users Protective Ass’n, 532 U.S. 1060, 1065-66 (2001)
(quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)
(internal quotation marks omitted)). See also Stewart v. Dep’t of
1nterior, 554 F.3d 1236, 1239 (10th Cir. 2009). 1t applies only to
“inter-agency or intra-agency memorandums or letters.” 5 U.S.C. §
552(b)(5).
Second, to be covered by the deliberative process privilege,
the material in question must be predecisional. 1n re Sealed Case,
23 All of the cases cited by the Government analyze the
deliberative process privilege in the FO1A context, See, e.g.,
Russell v. Dep't of the Air Force, 682 F.2d 1045 (D.C. Cir 1982).
_29_
121 F.3d 729, 737 (D.C. Cir. 1997). Material is predecisional if
“it was generated before the adoption of an agency policy.”
Judicial Watch, 1nc. v. Food & Drug Admin., 449 F.3d 141, 151 (D.C.
Cir. 2006) (quoting Coastal States Gas Corp. v. Dep't of Energv,
617 F.2d 854, 866 (D.C. Cir. 1980)). To be predecisional, a “court
must first be able to pinpoint an agency decision or policy to
which these documents contributed.” Morley v. C1A, 508 F.3d 1108,
1127 (D.C. Cir. 2007).
Third, the material must be deliberative in nature. 1g_r§
Sealed Case, 121 F.3d at 737. As a result, “[w]hen the information
at issue is “[f]actual material that does not reveal the
deliberative process," it is not protected. Morley, 508 F.3d at
1127 (quoting Paisley v. C1A, 712 F.2d 686, 698 (D.C. Cir. 1983)).
Material is deliberative if “it reflects the give-and-take of the
consultative process.” Morley, 508 F.3d at 1127. One key factor
to be considered is whether disclosing the requested information
would “inhibit candor in the decision-making process.” Army Times
Pub. Co. v. Dep't of the Air Force, 998 F.2d 1067, 1071 (D.C. Cir.
1993) (citing Petro1eum Info. Corp. v. Dep't of the 1nterior, 976
F.2d 1429, 1435 (D.C. Cir. 1992)).
The Court will now examine each of the Defendants’ 12
objections to material in the Fatal Betrayals Hanuscript, and
follow the same order that was presented in the Hardy Declaration.
_30._
As to the material on page 138 of the manuscript, it concerns
a decision as to whether the FB1 would be able to undertake an
investigation as large and time-consuming' as Plaintiff Wright
advocated. Not only is it pre-decisional, it is also deliberative
in that it contains the thought processes of two other agents.
As to the material on page 181 of the manuscript, it recounts
a conversation between Plaintiff Wright and an attorney for another
Government agency. The material identifies no decision that
resulted from the discussion described, nor was the conversation
deliberative.
As to the material in pages 213-214 of the manuscript, it
describes a presentation by Plaintiffs at a conference of federal
agents and attorneys about the scope of the investigation. 1t was
pre-decisional in terms of weighing and evaluating whether to
proceed with the seizure. 1ndividuals expressed their opinions in
what was a deliberative discussion.
As to the material on page 214, it concerns a question asked
by Plaintiff Wright of an Assistant United States Attorney as to
whether she thought the seizure was “possible” and her response,
Even though the conversation may be referring to the ultimate
decision as to whether to go forward with the seizure of assets, it
is clear that this was not a deliberative discussion about the
advantages or disadvantages of the project.
_3]__
As to the material on page 215 of the manuscript, it describes
the views of an Assistant United States Attorney regarding the
requirements for conducting additional investigation. While it
related to what further investigation needed to be done before a
decision could be made about proceeding with the seizure of assets,
it was not deliberative in that there was no give-and-take of the
consultative process.”
As to the material on page 219 of the manuscript, it refers to
a discussion about replacing Plaintiff Wright with a non-
intelligence affiant on an affidavit. This exchange concerned the
decision as to how to most effectively present the Government’s
case in its application to a federal judge for approval of the
seizure. 1t was pre-decisional and was deliberative in that people
" The Government also objects to the release of the
material on page 215 because it claims that it is protected by the
attorney-client privilege. As the Government states, the attorney-
client privilege protects “confidential communications between an
attorney and his client relating to a legal matter for which the
client has sought professional advice.” Hardy Dec. at 6. The
Government has failed to show that the statement made by the
Assistant U.S. Attorney described on page 215 was confidential.
For example, the Assistant U.S. Attorney made the statements
at a “meeting”; therefore, the claims of confidentiality are
dubious. 1n addition, the Government has not identified the
attorney, the client, or the “legal matter for which the client has
sought professional advice.” Hardy Decl. at 6. Finally, if
Plaintiff Wright was the client, he may waive the privilege.
CommoditV Futures Tradinq Comm'n v. Weintraub, 471 U.S. 343, 348-49
(1985) (discussing the power to waive the attorney-client
privilege); 1n re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984)
(stating that the privilege only applies if it is not waived by the
client).
_32_
expressed their views and one Assistant United States Attorney
vetoed the suggestion on the grounds that it would be wrong and
misleading.
As to the material on page 220 of the manuscript, it states
that an Assistant U.S. Attorney contacted Attorney General Reno's
office and requested permission to immediately seize the remaining
assets since $200,000 had recently been removed from the bank
account. This information is clearly pre-decisional since the
Assistant United States Attorney is requesting the Attorney General
to make a decision authorizing the seizure. 1t is not deliberative
because the particular language in question pertains only to the
request rather than to any discussion or consultation about its
merits.
As to the material on page 225 of the manuscript, it describes
a conversation about the “fears” of “innocent Muslims” who were
concerned about the bank account seizures. The decision which
resulted from this particular conversation was a decision to submit
a 37-page affidavit justifying the seizure. The conversation was
deliberative in that it weighed the best approach to a troubling
issue of how to allay the fears of a ndnority segment of the
American population.
As to the material in pages 232-234 of the manuscript, it
references questions prepared by FB1 headquarters. 1t does not
describe any decision that resulted from these questions or from
_33_
Plaintiff Wright’s response to them. 1t was neither pre-decisional
nor deliberative.
As to the material on page 238 of the manuscript, it describes
a presentation made by Wright and his supervisor to a conference of
FB1 agents from around the country. 1t also conveyed the fact that
a member of the National Security Law Unit, who was in the
audience, agreed with and confirmed the accuracy of the material
Wright and his supervisor had presented. The material described on
page 238 is informational, not deliberative. 1t is unclear what,
if any, decision was being made at this conference.
As to the material on page 260 of the manuscript, it describes
a meeting' in Chicago to discuss the opening of ea duplicative
criminal investigation in Milwaukee. Since it concerns the
decision about whether to open such an investigation, it is,
therefore, pre-decisional, 1t is deliberative in that it contains
the differing views of a DOJ attorney and others.
As to the material on page 316 of the manuscript, it describes
a statement by the Deputy Attorney General that “We will not have
any of that here,” in reference to complaints made during the
meeting about another DOJ attorney. At that point, Plaintiff
Wright decided it would not be useful to try to voice similar
complaints. The Government has not identified any agency decision
or policy that resulted from the making of the comment by the
_.34._.
Deputy Attorney General. Moreover, the material is clearly not
deliberative.
Thus, the Government has failed to show that the material
referred to in seven of its 12 objections is both pre-decisional
and deliberative as required by FO1A.” For that reason, it has
failed to carry its burden or proof to demonstrate that it has any
interest in censorship based on the deliberative process privilege
as embodied in FO1A. Since the Government has offered no other
justifications for censoring this material, it has failed to
satisfy the Pickering/§I§Q balancing test with respect to these
seven objections,
As to the Government’s remaining five objections, which are
covered by FO1A because they cover material that is both pre-
6 the Government has presented no
decisional and deliberative,2
justification apart from the deliberative process privilege. As
already noted, the McGehee court felt “compelled to go beyond the
FO1A standard of review for cases reviewing C1A censorship pursuant
to secrecy agreements,” 718 F.2d at 1148. However, the Government
ll
has failed “to go beyond the FO1A standard of review, and offers
” As described above, these are the objections contained in
pages 181, 214, 215, 220, 232-234, and 316 of the Fatal Betraya1s
manuscript.
% As described above, these are the objections contained in
pages 138, 213-214, 219, 225, and 260 of the Fatal Betrayals
manuscript.
_35_.
no further justification for censoring this material from public
view.
1n reviewing these materials, the Court sees nothing that
would justify suppressing information about “what their Government
is up to,” U.S. Department of Justice v. Reporters Committee for
Freedom of Press, 489 U.S. 749, 773 (1989), when it makes decisions
about prosecution of organizations it deems a threat to our
national security. What subject could be of greater concern to the
American public? Moreover, would not a long-time FB1 agent who had
participated in that decision-making have a perspective and
insights that would be of interest to the American public?
Finally, it is up to the Government to present with reasonable
specificity “reasonably convincing and detailed evidence of a
serious risk that intelligence sources and methods would be
compromised” by disclosure of the materials discussed, and that
such risk outweighs the First Amendment interests of both Plaintiff
and his potential audiences in dissemination of his views.
McGehee, 718 F.2d at 1149. The Government has totally failed to
articulate any such risk, and therefore has not met its burden
under Pickering, NI§Q, and Weaver.
D. The Government Has Not Satisfied Its Burden to Justify
Censorship of the Miller Interview Answers
The Government has conceded that all the answers to the
following questions may be released for publication: 2-6, 8, 11-
13, 15-16, 18-19, 21, and 25-26. Hardy Dec1., Ex. B (Bolthouse
_36_
Decl.). 1n addition, it has conceded that portions of answers to
three other questions may be released: the first sentence of the
answer to question 1, the first two sentences of the answer to
question 9, and the first sentence of the answer to question 14.
L
Plaintiffs make two arguments in support of their claim that
the Government should withdraw its objections to publication of all
of the Miller interview answers. First, they argue that the
Government has not justified its censorship of the Miller interview
answers with reasonable specificity. Pls.’ Renewed Mot. at 10.
Second, they contend that the Miller interview answers are in the
public domain and that the Government “has offered no evidence to
support its claim” that the material is not in the public domain.
ld; at 11, 1n response, the Government argues that Plaintiffs have
failed to “show that any information that continues to be withheld
is in the public domain.” Defs.' Opp’n at 6.
1n their Second Status Report, Defendants made no new
arguments on this issue, and instead relied heavily on the
Bolthouse Dec1aration, which was filed December 16, 2004. §§e
Defs.' Second Status Report at 9 (“[A]s to the New York Times
Judith Miller interview answers, the Declaration of Karlton
Bolthouse . . . explains the basis for the need to continue to
withhold the information.”).
_37_.
The Bolthouse Declaration does not provide individualized
justifications for censoring the Miller interview answers. §e§
Hardy Decl., Ex. B. 1nstead, it provides the identical
justification for censoring the Miller interview answers as it does
for censoring the Fatal Betrayals manuscript and the two O1G
complaints. §ee iQ4 1t argues that these materials “could not be
published as each submission contained information regarding open
investigations, information regarding matters occurring before a
federal grand jury, information regarding sensitive law enforcement
techniques, intelligence information and information otherwise
prohibited from release.” 1d;
Defendants concede that “this information is no longer being
withheld due to the existence of an open investigation,” but argue
that the “remaining grounds set forth in the Bolthouse Declaration
at pp. 19-22, 24-26 still pertain to the redacted information.”
Defs.' Second Status Report at 9. Defendants do not state the
specific grounds to which they are referring, but the pages they
list include the following three headings: “1nformation related to
matters before a federal grand jury,” “sensitive law enforcement
techniques/intelligence information,” and “information prohibited
from disclosure for other reasons.” Hardy Decl., Ex. B.
The Government is correct that Plaintiffs bear the burden of
showing that material is in the public domain. See supra 11l.A.
However, before the burden shifts to the Plaintiff to make this
_38_
showing, the Government must first justify censorship with
reasonable specificity. McGehee, 718 F.2d at 1148. This the
Government has failed to do. To the contrary, it relies on the four
year old Bolthouse Declaration which merely gives generalized,
conclusory, and inapplicable reasons for censoring material, much
of which the Government is no longer even seeking to censor. lt
made no effort to link a particular interview answer to a specific
threat to a specific Government interest. 1nstead, the Government
again has left it to the Court to determine which of its broad
allegations -- for example, that release of the Miller interview
answers would reveal “sensitive law enforcement techniques” --
match up with particular interview answers. 1n addition, it has
not provided any evidence to indicate the likelihood that the
release of a particular answer would actually result in the harm
alleged or how the release of this information would produce that
alleged effect. For these reasons, the Government has fallen
far short of its burden to justify censorship of the Miller
interview answers with reasonable specificity.
E. The Government Has Not Satisfied Its Burden to Justify
Censorship of the OIG Complaints
1n spite of the Court’s clear statement in its February 23,
2009 Order that the parties should state their positions “with
specificity and appropriate case citations,” the parties did not
provide clear statements of their positions with respect to the OIG
complaints.
_39_
The Government argues that the issue was previously resolved,
as stated in the Bo1thouse Declaration of December 16, 2004. See
Defs.' Second Status Report at 2 (Mar. 13, 2009). The Bolthouse
Declaration states that in March 2004, “a determination had been
made that these documents could be submitted to the DoJ O1G and the
FB1 OPR without the need for prepublication review.” Bolthouse
Decl. at 18.
1n contrast, Plaintiffs’ pleadings deny that the issue has
been resolved. 1n their Renewed Motion for Summary Judgment,
Plaintiffs argue that the “declarations of both Plaintiffs clearly
state” that the OIG complaints “are based on public domain
information.” Pls.’ Renewed Mot. at 10.
As this Court’s Opinion of July 31, 2006, stated, when the
Government permitted release of the complaints to the DoJ and FB1,
it did not automatically permit public release as well. §e§ July
31, 2006 Opinion at 10 (“[R]elease to any other party was
prohibited.”). None of Defendants’ subsequent submissions have
indicated that they have changed their position and decided to
permit release to parties other than the DoJ and FB1.
1t is clear that the dispute has not been resolved.
Plaintiffs have indicated that they do not believe release to the
DoJ and FB1 to be sufficient. However, the Government has offered
no justification in this round of pleadings to support the
continued censorship of the OIG complaints and merely stated that
_40._
the issue had been resolved previously in 2004. The latter does
not appear to be correct. Thus, the Government has failed to
provide a reasonably specific justification for censorship of the
OIG complaints.
IV. Conclusion
For the reasons set forth above, Defendants’ Renewed Motions
for Summary Judgment [Dkt. No. 76] are granted in part and denied
in part with respect to the Fatal Betrayals manuscript, denied with
respect to the Miller interview questions, and denied with respect
to the OIG complaints. Plaintiffs’ Motions for Summary Judgment
[Dkt. No. 90] are granted in part and denied in part with respect
to the Fatal Betrayals manuscript, granted with respect to the
Miller interview questions, and granted with respect to the O1G
complaints.
/s/
May 6, 2009 Gladys Kessler
United States District Judge
Copies to: Attorneys of record via ECF
_41_