Lewis v. U.S. Department of the Treasury ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ERIC L. LEWIS,
Plaintiff,
v.
No. 17-cv-0943 (DLF)
U.S. DEPARTMENT OF THE
TREASURY, et al.,
Defendants.
MEMORANDUM OPINION
Eric L. Lewis brings this action against the U.S. Department of Treasury and Financial
Crimes Enforcement Network (FinCEN), a bureau within the Department of Treasury, under the
Freedom of Information Act (FOIA), 5 U.S.C. § 552. Before the Court are the defendants’
second Motion for Summary Judgment, Dkt. 36, and Lewis’s second Cross Motion for Summary
Judgment, Dkt. 37. For the reasons that follow, the Court will grant FinCEN’s motion and deny
Lewis’s cross motion.
I. BACKGROUND
The plaintiff, Eric L. Lewis, is an attorney who previously represented shareholders of
Banca Privada d’Andorra S.A. (BPA), an Andorran bank, in a lawsuit against the defendant,
FinCEN. See Defs.’ Statement of Material Facts As to Which There is No Genuine Dispute ¶ 3
(Defs.’ Statement of Facts), Dkt. 36-3; Pl.’s Statement of Material Facts As to Which There is
No Genuine Dispute ¶ 3 (Pl.’s Statement of Facts), Dkt. 37-2; Compl. ¶ 12, Dkt. 1. In that suit,
the BPA shareholders sued FinCEN over a rulemaking action in which it imposed an anti-money
laundering measure against the bank. Defs.’ Statement of Facts ¶ 3. On July 19, 2016, Lewis
submitted a FOIA request to FinCEN, seeking documents related to the rulemaking. See id. ¶ 4;
Compl. ¶ 12. Specifically, Lewis sought “[a]ny and all forms of communication, including but
not limited to emails, letters, and facsimiles, between FinCEN and any department or division of
the Government of Andorra and/or communications within FinCEN or with any other U.S.
agency or with any department or division of the Government of Spain,” regarding fifteen named
individuals. Defs.’ Statement of Facts at ¶ 2.
FinCEN initially identified 528 pages of responsive documents, releasing six of those
pages in redacted form and withholding in full the remaining 522 pages. See First El-Hindi Decl.
¶¶ 3, Dkt. 16-5; Pl.’s Statement of Facts ¶ 31–32. In September 2017, FinCEN filed a motion for
summary judgment, and Lewis filed a cross motion for summary judgment that challenged the
adequacy of FinCEN’s search and its invocation of Exemptions 3, 5, 7(A), 7(D) and 7(E). See
Dkts. 16, 17. The Court denied both motions, holding that FinCEN had not supplied enough
information to allow the Court to determine whether the search was adequate or whether FinCEN
properly invoked the two exemptions. See Mem. Op. & Order at 2, Dkt. 23.
FinCEN then conducted two new searches for the requested records and ultimately
identified 1,399 potentially responsive records. See Third El-Hindi Decl. ¶¶ 3, 9, Dkt. 36-2. It
withheld 902 pages in full and 61 pages in part. Id. ¶ 98. FinCEN filed a renewed motion for
summary judgment on April 18, 2019 and Lewis filed a renewed cross motion for summary
judgment on May 20, 2019. In support of its motion, FinCEN submitted: two declarations from
FinCEN’s Deputy Director Jamal El-Hindi, see Third El-Hindi Decl.; Fourth El-Hindi Decl.,
Dkt. 39-1; a Vaughn Index, see Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973); Third El-Hindi
Decl. Ex. 1, Dkt. 36-2, and (3) an Amended Vaughn Index, see Fourth El-Hindi Decl. Ex. 1, Dkt.
2
39-1. 1 In his renewed cross motion, Lewis no longer challenges the adequacy of the search, and
instead contests FinCEN’s invocation of Exemptions 5, 7(A) and 7(D). 2 See Pl.’s Br. at 9, 31.
II. LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure mandates that “[t]he court shall 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). When a
federal agency moves for summary judgment in a FOIA case, all facts and inferences must be
viewed in the light most favorable to the requester, and the agency bears the burden of showing
that it complied with FOIA. Chambers v. Dep’t of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009).
To prevail under Rule 56, a federal agency “must prove that each document that falls
within the class requested either has been produced, is unidentifiable, or is wholly exempt from
[FOIA’s] inspection requirements.” Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (per
curiam) (internal quotation marks omitted). “The system of disclosure established by the FOIA
is simple in theory[:] [a] federal agency must disclose agency records unless they may be
1
FinCEN submitted an Amended Vaughn Index because the first Vaughn Index inadvertently
contained several errors. See Fourth El-Hindi Decl. ¶ 5. The Amended Vaughn Index updated
sections 7, 12, 24, 25, 26, 29, 30, 34 and 36 to ensure that documents have the correct categorical
explanation for withholding, to remove duplicate listings of documents, and to provide
information previously omitted. Id. ¶ 9.
2
FinCEN also invoked Exemptions 3, 4, 6, and 7(C) to withhold responsive documents in part
and Exemptions 7(C) and 7(E) to withhold documents in full. See Vaughn Index; Third El-Hindi
Decl. Lewis does not challenge the withholdings under Exemptions 3, 4, 6 or 7(C), see Pl.’s Br.;
Pl.’s Reply at 18, and he only challenges the FinCEN’s decision to withhold records under
Exemption 7(E) in full, see Pl.’s Br. at 14 n. 7. He therefore concedes that FinCEN’s
withholdings under Exemption 7(C) and FinCEN’s redactions under Exemptions 3, 4, 6, and
7(E) are proper. Hopkins v. Women’s Div., 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well
understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and
addresses only certain arguments raised by the defendant, a court may treat those arguments that
the plaintiff failed to address as conceded.”).
3
withheld pursuant to one of the nine enumerated exemptions listed in [5 U.S.C.] § 552(b).” DOJ
v. Julian, 486 U.S. 1, 8 (1988). The agency bears the burden of justifying the application of any
exemptions, “which are exclusive and must be narrowly construed.” Mobley v. CIA, 806 F.3d
568, 580 (D.C. Cir. 2015).
Federal courts rely on agency affidavits to determine whether an agency complied with
FOIA. Perry, 684 F.2d at 126. Agency affidavits are entitled to a presumption of good faith,
SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and a court may grant summary
judgment based on an affidavit if it contains reasonably specific detail and is not called into
question by contradictory record evidence or evidence of bad faith, Judicial Watch v. U.S. Secret
Serv., 726 F.3d 208, 215 (D.C. Cir. 2013). It is well established that “the vast majority of FOIA
cases can be resolved on summary judgment.” Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).
III. ANALYSIS
A. Exemption 7
Exemption 7 permits an agency to withhold “records or information compiled for law
enforcement purposes” if disclosure could reasonably be expected to cause a certain set of
harms. 5 U.S.C. § 552(b)(7). An agency must therefore “as a preliminary matter make a
threshold showing demonstrating that the records were compiled for a law enforcement
purpose.” Pinson v. DOJ, 245 F. Supp. 3d 225, 249 (D.D.C. 2017) (internal quotation marks
omitted).
1. Exemption 7 Threshold Inquiry
Documents are compiled for “law enforcement purposes” if “the investigatory activity
that gave rise to the documents is related to the enforcement of federal laws, and there is a
4
rational nexus between the investigation at issue and the agency’s law enforcement duties.”
Judicial Watch, Inc. v. Rossotti, 285 F. Supp. 2d 17, 24 (D.C. Cir. 2003) (internal quotation
marks omitted). This depends on “how and under what circumstances the requested files were
compiled” and “whether the files sought relate to anything that can fairly be characterized as an
enforcement proceeding.” Jefferson v. DOJ, 284 F.3d 172, 176–77 (D.C. Cir. 2002) (internal
quotation marks omitted). “Law enforcement purposes” can concern both civil and criminal
matters. Tax Analysts v. IRS, 294 F.3d 71, 77 (D.C. Cir. 2002). While agencies whose primary
function involves law enforcement may be afforded deference, the exemption also applies to
agencies “with both law enforcement and administrative functions,” such as the IRS. Id. The
ordinary understanding of “law enforcement” includes the “proactive steps designed to prevent
criminal activity and to maintain security.” Public Emps. for Envtl. Responsibility (PEER) v.
U.S. Section, Int’l Boundary & Water Comm’n, 740 F.3d 195, 203 (D.C. Cir. 2014) (quoting
Milner v. Dep’t of the Navy, 562 U.S. 562, 582 (2011) (Alito, J., concurring)).
FinCEN has established that the withheld documents were compiled for law enforcement
purposes because all of the documents relate to investigations into BPA’s alleged money
laundering by FinCEN and other government agencies. FinCEN’s role includes “support[ing]
government initiatives against money laundering,” 31 U.S.C. § 310(b)(2)(C), and it has the
authority to enforce the Bank Secrecy Act and Section 311 of the USA PATRIOT Act, see
Treasury Order 180-01 (July 1, 2014). FinCEN’s statutory duties also involve facilitating
investigations conducted by foreign governments through mandates such as “[c]oordinat[ing]
with financial intelligence units in other countries on anti-terrorism and anti-money laundering
initiatives, and similar efforts,” id. § 310(b)(2)(H), and “[f]urnish[ing] research, analytical and
information services to . . . foreign law enforcement authorities . . . in the interest of detection,
5
prevention, and prosecution of terrorism, organized crime, money laundering, and other financial
crimes,” id. § 310(b)(2)(E).
According to El-Hindi, FinCEN generated the records at issue to “(1) support FinCEN’s
own investigations and actions to enforce statutes that FinCEN administers, (2) facilitate law
enforcement agencies’ investigation of financial or other crimes, and (3) cooperate with foreign
government agencies in furtherance of foreign or domestic law enforcement investigations or
actions.” Third El-Hindi Decl. ¶ 15. FinCEN’s assertion that the records were created for
various investigations—either its own enforcement actions or criminal actions in other
jurisdictions—establishes a “rational nexus” between its basis for compiling the records and its
statutory law enforcement duties. FinCEN’s own Section 311 action against BPA involved an
anti-money laundering measure, making it a “proactive step[] designed to prevent criminal
activity and to maintain security,” and therefore a law enforcement proceeding. See PEER, 740
F.3d at 203. Further, Exemption 7 applies not only to domestic law enforcement purposes, but
also to foreign law enforcement purposes. See Bevis v. Dep’t of State, 801 F.2d 1386, 1388
(D.C. Cir. 1986). Information that FinCEN gathered to aid foreign law enforcement therefore
still falls under the threshold inquiry because a connection exists between this information and
FinCEN’s statutory law enforcement duties.
While FinCEN is indeed a “mixed function agency,” see Pl.’s Br. 10–11, agencies that
have both civil and criminal enforcement duties still can invoke Exemption 7 as long as they
compiled the records for law enforcement purposes. PEER, 740 F.3d at 203 (noting that “the
withheld record must have been compiled for law enforcement purposes,” but “the withholding
agency need not have statutory law enforcement functions” (emphasis in original)). And
contrary to Lewis’ suggestion, FinCEN need not identify a particular individual or incident as the
6
object of its investigation. See Pl.’s Br. at 10, 12–13. A prior version of Exemption 7 required a
threshold showing that the withheld materials be “investigatory records compiled for law
enforcement purposes,” but Congress amended Exemption 7 in 1986 to remove the
“investigatory” requirement. See Tax Analysts, 294 F.3d at 79. Under the amended version, an
agency can invoke Exemption 7 for internal agency materials “relating to guidelines, techniques,
sources, and procedures for law enforcement investigations and prosecutions, even when the
materials have not been compiled in the course of a specific investigation.” Id. Accordingly,
FinCEN has met the necessary threshold showing for Exemption 7.
2. Exemption 7(A)
Once the threshold inquiry of Exemption 7 is satisfied, an agency may withhold
documents under Exemption 7(A) if their disclosure “could reasonably be expected to interfere
with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A); see, e.g. Ctr. for Nat’l Sec. Studies v.
DOJ, 331 F.3d 918, 928 (D.C. Cir. 2003) (finding reasonable expectation of interference when
releasing documents could enable subjects of investigation “to better evade the ongoing
investigation and more easily formulate or revise counter-efforts”). An agency may invoke
Exemption 7(A) only if an enforcement proceeding is either “reasonably anticipated,” Sussman
v. U.S. Marshals Serv., 494 F.3d 1106, 1114 (D.C. Cir. 2007), or “pending at the time of [a
court’s] decision, not only at the time of the initial FOIA request,” Citizens for Responsibility &
Ethics in Washington (CREW) v. DOJ, 746 F.3d 1082, 1097 (D.C. Cir. 2014).
Under Exemption 7(A), it is “often appropriate” for an agency to use the categorical
approach, which involves “grouping documents in categories and offering generic reasons for
withholding the documents in each category.” Id. at 1098. The categories must be “sufficiently
distinct to allow a court to grasp how each category of documents, if disclosed, would interfere
7
with the investigation.” Bevis, 801 F.2d at 1389 (internal quotation marks omitted). An agency
must take three steps to invoke the categorical approach: (1) define categories “functionally,” (2)
“conduct a document-by-document review in order to assign documents to the proper category,”
and (3) “explain to the court how the release of each category would interfere with enforcement
proceedings.” Id. at 1389–90. The defined categories must “allow[] the court to trace a rational
link between the nature of the document and the alleged likely interference.” Crooker v. Bureau
of Alcohol, Tobacco & Firearms, 789 F.2d 64, 67 (D.C. Cir. 1986). And although courts may
“give deference to an agency’s predictive judgment of the harm that will result from disclosure
of information, . . . it is not sufficient for the agency to simply assert that disclosure will interfere
with enforcement proceedings; it must rather demonstrate how disclosure will do so.” CREW,
746 F.3d at 1098.
This Court previously found that FinCEN did not provide enough information to meet its
burden under the categorical approach and directed that they “supplement the record by (1)
confirming the status of the anticipated or pending investigations, (2) providing greater detail
about how the withheld documents were assigned to the various functional categories, and (3)
providing greater clarity about how the document types and functional categories set forth in the
El-Hindi declaration and the Vaughn Index fit together and relate to the anticipated or pending
law enforcement investigations identified in the El-Hindi declaration.” Mem. Op. and Order at
8–9. FinCEN’s two additional declarations and its two revised Vaughn Indexes provide the
necessary additional information to show that disclosure of each category of documents could
“reasonably be expected to interfere with enforcement proceedings.” See 5 U.S.C. §
552(b)(7)(A).
8
The El-Hindi declaration confirms that the documents withheld under Exemption 7(A)
relate to an ongoing investigation by a foreign jurisdiction. While El-Hindi notes that most of
the investigations that were open at the time of the First El-Hindi Declaration—including
FinCEN’s Section 311 rulemaking—have concluded, he asserts that “foreign authorities have
confirmed to FinCEN that foreign investigations and proceedings are still pending into the facts
underlying the Section 311 rulemaking, and persons related to BPA.” Third El-Hindi Decl. ¶ 20;
see also Fourth El Hindi Decl. ¶ 4 (stating that the foreign jurisdiction investigating these cases
has “repeatedly confirmed that the release of the identified documents would interfere with its
ongoing proceedings”). For the purposes of Exemption 7(A), it makes no difference that
disclosure would obstruct the law enforcement proceedings of a foreign jurisdiction rather than a
domestic one. See Bevis, 801 F.2d at 1388 (upholding exemption of documents related to
Salvadorian law enforcement proceeding).
The Court finds unpersuasive Lewis’ argument that the foreign investigations into BPA
have either concluded or been made public such that disclosure presents no risk. See Pl.’s Br at
17–18; 24–25; Renedo Herranz Decl., Dkt. 37-4; Jiminez Naudi Decl., Dkt. 37-5. BPA’s alleged
activity involved investigations in a number of jurisdictions, and BPA’s knowledge that some
law enforcement actions have concluded does not preclude the existence of ongoing, confidential
investigations in other jurisdictions. And government declarations are entitled to a presumption
of good faith. See SafeCard, 926 F.2d at 1200. Additionally, contrary to Lewis’ suggestion, it is
unnecessary that FinCEN specify where the proceeding is taking place or whom it is targeting.
See Pl.’s Br. at 18. FinCEN need only provide “reasonably specific detail” in its affidavits to
prove that investigations or proceedings are ongoing. See Larson v. Dep’t of State, 565 F.3d
857, 862 (D.C. Cir. 2009); see also Dillon v. DOJ, 102 F. Supp. 3d 272, 290 (D.D.C. 2015)
9
(ruling that agency’s claim of “ongoing investigations of known and suspected terrorists”
satisfied Exemption 7(A)). FinCEN’s assertion that the foreign investigations relate to “the facts
underlying the Section 311 rulemaking, and persons related to BPA” provides enough specificity
for 7(A).
FinCEN also provided sufficient detail about its functional categories to address how the
disclosure of documents in each category would frustrate enforcement proceedings. FinCEN
created two general categories: “investigatory materials” and “evidentiary materials,” see Third
El-Hindi Decl. ¶ 23, and divided each of those categories into subcategories, see id. ¶¶ 24–30.
FinCEN conducted a document-by-document review in forming these categories. See Vaughn
Index. These subcategories satisfy the functionalism requirement because they allow the Court
to “trace a rational link” to the potential for interference. See Bevis, 801 F.2d at 1390. And in
Edmonds v. FBI, 272 F. Supp. 2d 35 (D.D.C. 2003), this Court upheld an agency’s invocation of
7(A) using identical functional categories—evidentiary and investigative materials—coupled
with “a detailed discussion of the materials contained within each functional category and the
reasons that disclosure would interfere with the pending investigations,” id. at 54–55, which
FinCEN has done here.
In the “investigatory materials” category, FinCEN included “records of law-enforcement
methods or procedures undertaken in furtherance of the investigation, including requests for
information, the results of these investigative requests, dissemination of information obtained,
and correspondence about the methods and procedures employed in ongoing investigations and
enforcement activities.” Id. ¶ 25. FinCEN divided this material into two subcategories:
“exchange of information with domestic law-enforcement agencies” and “exchange of
information with foreign government agencies.” Id. ¶ 25–26.
10
According to El-Hindi, releasing documents exchanged with domestic agencies in
relation to a foreign investigation would allow the subject of that investigation to gain insight
into “what sort of information a foreign [Financial Intelligence Unit] or foreign law-enforcement
authority might be seeking from U.S. authorities through FinCEN in its capacity as a network for
financial intelligence.” Id. ¶ 25. It would allow the subject to better understand “the thought
processes” of the foreign authority, the “lines of inquiry pursued, and what types of information
investigators have pursued or might still be pursuing.” Id. Similarly, prematurely disclosing
information given to foreign law-enforcement authorities involving an ongoing proceeding
would allow subjects to access information that may be part of their ongoing case. Id. ¶ 26.
Releasing these documents could also chill future cooperation between FinCEN and foreign
government agencies by undermining FinCEN’s promises of confidentiality. Id.
The “evidentiary materials” category includes “records of evidence, analysis of evidence,
and derivative communications discussing or otherwise incorporating evidence.” Id. ¶ 27.
FinCEN also divided this category into three subcategories: “confidential financial information,”
“other confidential identifying information,” and “exchange of evidentiary information between
FinCEN and law-enforcement agencies.” Id. ¶ 28–30. These subcategories, too, permit the
Court to assess how disclosure would impede the ongoing proceeding because they involve
different types of evidentiary material in the proceeding.
Disclosing the confidential evidentiary information could reveal details about an ongoing
investigation, as well as the sources of the confidential information, implicating them as potential
witnesses. Id. ¶¶ 28–29. Disclosing the evidentiary information FinCEN exchanges would
“cause significant disruption” to the ongoing proceeding and again hamper its ability to share
financial intelligence with foreign authorities. Id. ¶ 30.
11
Courts “give deference to an agency’s predictive judgment of the harm that will result
from disclosure of information,” CREW, 746 F.3d at 1098, and the D.C. Circuit has consistently
upheld agencies’ use of 7(A) to prevent revealing the scope and focus of ongoing proceedings,
which FinCEN does here, see, e.g. Boyd v. Crim. Div. of DOJ, 475 F.3d 381, 387 (D.C. Cir.
2007) (exempting from disclosure “information [that] could reasonably be expected to reveal to
the targets the size, scope, and direction of [the] investigation”) (internal quotation marks
omitted); Ctr. for Nat’l Sec. Studies, 331 F.3d at 923 (exempting from disclosure information
that could reveal the “progress and direction of the ongoing investigation”). FinCEN has
provided sufficient detail in its Vaughn Indexes and the two El-Hindi declarations to demonstrate
the specific risk of harm that disclosure would pose to the ongoing foreign investigation.
3. Exemption 7(D)
Exemption 7(D) permits agencies to withhold records compiled for law enforcement
purposes to the extent that the records “could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or authority, and, in the case of a
record or information compiled by criminal law enforcement authority in the course of a criminal
investigation . . . information furnished by a confidential source.” 5 U.S.C. § 552(b)(7)(D).
FinCEN concedes that it only relied on the first clause—that the information would be likely to
reveal the identity of a confidential source—to withhold the information. See Defs.’ Reply at 19,
Dkt. 39. The parties do not dispute that withheld documents were furnished by confidential
sources. See Pl.’s Br. 26–29. The dispute centers on whether the information supplied by the
confidential sources must be entirely withheld or whether these documents can be redacted in a
way that would not reveal the identity of confidential sources. See id. at 28–29.
12
According to FinCEN, releasing any of the information in the withheld documents would
“almost always yield sufficient detail to reveal the identity of the source.” Third El-Hindi Decl.
¶¶ 33–34. A confidential source’s information is “often singular in nature,” id. ¶ 34, and can
therefore be readily associated with the jurisdiction and source from which it came, id. ¶ 57. For
example, if FinCEN disclosed information that a foreign financial institution provided to a
foreign government, that information could be “easily traced back to the source based on
inferences about the nationality or location of the financial institution or persons under
investigation.” Id. Therefore, simply redacting the portions of the documents that directly
reference the confidential sources would not sufficiently protect their identities from disclosure.
See id.
Permitting FinCEN to withhold the entirety of these documents does not mean that an
agency can withhold all information furnished by confidential sources, regardless of whether it
was provided in the course of a criminal investigation. See Pl.’s Reply 11–12. Exemption 7(D)
“applies to all information that would tend to reveal a source’s identity,” see Sarno v. DOJ, 278
F. Supp. 3d 112, 123 (D.D.C 2017), not just to information that directly names a confidential
source. FinCEN has demonstrated that, based on the specific facts at issue here, disclosing any
information contained in the documents would reveal the identity of confidential sources
“[b]ecause the information exchanged is so closely tied to those foreign jurisdictions and the
sources maintained by FinCEN's foreign counterparts.” Third El-Hindi Decl. ¶ 60. FinCEN
need not disclose otherwise non-exempt information that is “inextricably intertwined” with
exempt information about its confidential sources. Bullock v. FBI, 577 F. Supp. 2d 75, 80
(D.D.C. 2008). FinCEN represents that it conducted a thorough review of each document and
concluded that no material was reasonably segregable, see Third El-Hindi Decl. ¶ 97, and
13
agencies are entitled to a presumption that they disclosed reasonably segregable material, see
Sussman, 494 F.3d at 1117. FinCEN has thus properly invoked Exemption 7(D).
B. Exemption 5
FOIA Exemption 5 exempts from disclosure “inter-agency or intra-agency
memorandums or letters that 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). This includes all documents that would
normally be privileged in the civil discovery context. NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 149 (1975).
FinCEN invokes the deliberative process privilege under Exemption 5 to either redact or
withhold the remaining documents at issue. 3 The deliberative process privilege allows agencies
to withhold “documents reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are formulated.”
Petroleum Info. Corp. v. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (internal
quotation and citation omitted). The privilege “rests on the obvious realization that officials will
not communicate candidly among themselves if each remark is a potential item of discovery and
front page news, and its object is to enhance the quality of agency decisions.” Dep’t of Interior
v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8–9 (2001) (internal quotation marks
omitted).
3
While FinCEN has invoked both the deliberative process privilege and the attorney-client
privilege under Exemption 5, see Fourth El-Hindi Decl. ¶ 6; Third El-Hindi Decl. ¶¶ 78–80,
Lewis only challenges the application of the attorney-client privilege to the extent that FinCEN
withholds the documents in full. See Pl.’s Br. at 29 n. 17; id. at 41 n. 22. All the documents that
FinCEN withholds in full under the attorney-client privilege are also covered by Exemptions
7(A) and 7(D). See Vaughn Index at 63, 75, 84, 85. Because the Court has already held that
FinCEN has properly used those exemptions, it does not address the attorney-client privilege.
14
To invoke the deliberative process privilege, an agency must show that the information
withheld is both “predecisional” and “deliberative.” Petroleum Info. Corp., 976 F.2d at 1434.
Predecisional material is “prepared in order to assist an agency decisionmaker in arriving at his
decision, rather than to support a decision already made.” Id. (internal quotation marks omitted).
Deliberative material “reflects the give-and-take of the consultative process.” Id. (internal
quotation marks omitted). Materials withheld under the deliberative process privilege “must
bear on the formulation or exercise of agency policy-oriented judgment.” Id. at 1435 (emphasis
omitted). An agency need not pinpoint a single decision to which a withheld document
contributed. Access Reports v. Department of Justice, 926 F.2d 1192, 1196 (D.C. Cir. 1991).
Rather, an agency may simply identify a decisionmaking process to which a withheld document
contributed. Id. In addition, “[t]o the extent that predecisional materials, even if ‘factual’ in
form, reflect an agency’s preliminary positions or ruminations about how to exercise discretion
on some policy matter, they are protected under Exemption 5.” Petroleum Info. Corp., 976 F.2d
at 1435.
1. Documents withheld in full
The first set of documents that FinCEN withheld in full under Exemption 5 are drafts of a
document entitled “Financial Crimes Enforcement Network; Withdrawal of Notice of Proposed
Rulemaking Regarding Banca Privada d’Andorra” that was eventually published in the Federal
Register. See Vaughn Index at 50. While drafts are not presumptively privileged, see Judicial
Watch, Inc. v. U.S. Postal Service, 297 F. Supp. 2d 252, 261 (D.D.C. 2004), they are “commonly
found exempt under the deliberative process exemption,” People for the Am. Way Found. v.
Nat’l Park Serv., 503 F. Supp. 2d 284, 303 (D.D.C. 2007). These drafts were predecisional
because they were prepared to help FinCEN officials finalize the language in the agency’s
15
proposed rulemaking regarding BPA. See Vaughn Index at 50; Petroleum Info. Corp., 976 F.2d
at 1434. The drafts are also deliberative because they contain comments and redline edits that
“reflect[] the give-and-take of the consultative process” between FinCEN officials regarding
what material the final document should include. See Vaughn Index at 50; Petroleum Info.
Corp., 976 F.2d at 1434.
Lewis contends that FinCEN may not withhold these drafts under the deliberative process
privilege because FinCEN eventually adopted them as a formal policy. See Judicial Watch, 297
F. Supp. 2d at 261 (explaining that drafts “adopted formally or informally, as the agency position
on an issue” will defeat a claim of privilege); Pl.’s Br. at 38–39. But the Vaughn Index notes that
these documents differ from the final documents posted because they “contain comments and
redline edits that convey the authors’ opinions regarding that draft language.” Vaughn Index at
50. Therefore, the draft documents were properly withheld under Exemption 5.
FinCEN also withheld several emails in full under the deliberative process privilege of
Exemption 5, including “communication[s] between FinCEN officials on posting BPA
comments” and “an email communication and clearance tracker between FinCEN officials on the
BPA overview.” Vaughn Index at 83; see also Am. Vaughn Index at 7. These emails are
predecisional because they document intra-agency discussions about posting comments on the
Section 311 rulemaking action against BPA before the comments were posted, so the officials
were “still in the process of deciding what to do.” Id. These discussions were geared toward
deciding which comments FinCEN should post. See Petroleum Info. Corp., 976 F.2d at 1435.
The emails are also deliberative because they involve “ongoing back-and-forth” discussions
about “pending issues related to the comments and how to handle them.” See Vaughn Index at
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50; see also Petroleum Info. Corp., 976 F.2d at 1435. Accordingly, FinCEN properly withheld
the emails relating to the BPA comments on its Section 311 action.
2. Redacted documents
FinCEN also redacted several documents. First, it redacted an email exchange between
an official in its Office of Public Affairs and a Department of Justice official concerning a press
inquiry about a press release issued by BPA discussing the Section 311 action. See Vaughn
Index at 46. According to the Vaughn Index, FinCEN withheld the officials’ discussions about
how to respond to the reporter. Id. These emails are predecisional and deliberative because they
involve conversations about how to formulate the agency’s official response to the inquiry. See
id.
Second, FinCEN redacted parts of an email exchange between its officials discussing
plans for posting comments relating to the agency’s Section 311 action against BPA. See
Vaughn Index at 47. These documents are predecisional because they involve subordinate
FinCEN officials “conveying nonfinal plans” prior to the agency’s ultimate decision about which
comments to post, and they are deliberative because they involve “the decision making process
about what will be posted.” Id.
Third, FinCEN redacted portions of email exchanges between Treasury officials
concerning a weekly report released from Treasury’s Enforcement Division. See id. These
portions are predecisional because they contain discussions about what the Enforcement Division
will include in its weekly updates and they are deliberative because they include “the authors’
opinions” regarding those decisions. Id.
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C. Segregability
FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C.
§ 552(b). An agency may satisfy its segregabiltiy obligations by “(1) providing a Vaughn index
that adequately describes each withheld document and the exemption under which it was
withheld; and (2) submitting a declaration attesting that the agency released all segregable
material.” Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 207 (D.D.C. 2013). The
segregabilty requirement does not apply to non-exempt material that is “inextricably
intertwined” with exempt material. Mead Data Cent., Inc. v. Dep’t of the Air Force, 566 F.2d
242, 250 (D.C. Cir. 1977). Agencies are entitled to a presumption that they complied with the
obligation to disclose reasonably segregable material. Sussman, 494 F.3d at 1117.
FinCEN has complied with its obligation to provide any “reasonably segregable”
information. In each section of its Vaughn Index, FinCEN represents that it conducted a
“thorough” document-by-document review of that set of documents and concluded that “no
additional meaningful, non-exempt information” could be reasonably segregated and released.
See Vaughn Index. El-Hindi also confirms in his sworn declaration that “no non-exempt
information exists that can be reasonably segregated and released.” Third El-Hindi Decl. ¶ 97.
Lewis contends that FinCEN’s descriptions are inadequate because FinCEN must
“describe what proportion of the information in a document is non-exempt and how that material
is dispersed throughout the document.” Mead Data Cent., 566 F.2d at 261. But the D.C. Circuit
has since “relaxed” this standard, see Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 206
(D.D.C. 2013), and FinCEN has provided a comprehensive Vaughn Index and multiple agency
affidavits attesting that it released all segregable material, see Loving v. DOD, 550 F.3d 32, 41
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(D.C. Cir. 2008) (holding that a description of the document in the Vaughn Index and an agency
declaration that it released all segregable material is “sufficient for [the segregability]
determination”). Lewis’ speculative claim that it is “unlikely that nothing in over 900 pages of
responsive material could be disclosed,” see Pl.’s Br. at 43, similarly fails because FinCEN is
entitled to a presumption that it complied with its segregability obligation, see Sussman, 494
F.3d at 1117. The Court therefore holds that FinCEN has provided Lewis with all “reasonably
segregable” material.
D. In Camera Review
A district court may in its discretion “examine the contents of” agency records in camera.
5 U.S.C. § 552(a)(4)(B); see also Quinon v. FBI, 86 F.3d 1222, 1227 (D.C. Cir. 1996) (“The
decision to conduct an in camera review is committed to the broad discretion of the trial court
judge.” (internal quotation marks omitted)). In camera review is appropriate (1) when the
affidavits are conclusory or “not described in sufficient detail to demonstrate that the claimed
exemption applies,” or (2) “if there is evidence of agency bad faith.” Carter v. Dep’t of
Commerce, 830 F.2d 388, 392–93 (D.C. Cir. 1987). A court can also consider judicial economy,
the public interest, and whether the dispute centers on the actual contents of the documents. Id.
Lewis requests in camera review of the records withheld under Exemptions 5, 7(A) and
7(D). See Pl.’s Br. at 44. These records comprise hundreds of documents, and courts are
reluctant to conduct in camera review when “examination of the requested documents would
require herculean labors because of their volume.” Carter v. Dep’t of Commerce, 830 F.2d 388,
393 (D.C. Cir. 1987) (internal quotation marks omitted). Further, El-Hindi’s two additional
declarations, as well as the two Vaughn Indexes, “provide specific information sufficient to place
the documents within the exemption category.” Quinon, 86 F.3d at 1227 (internal quotation
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marks omitted); see also Marck v. Dep’t of Health & Human Services, 314 F. Supp. 3d 314, 329
(D.D.C. 2018) (denying request for in camera review because the declaration was detailed
enough to satisfy FOIA exemptions). The record also lacks any evidence of bad faith by the
government. See Plunkett v. DOJ, No. 11-cv-341, 2015 WL 5159489, at *12 (D.D.C. Sept. 1,
2015). Accordingly, the Court denies Lewis’ request for in camera review.
CONCLUSION
For the foregoing reasons, the Court grants FinCEN’s Motion for Summary Judgment
and denies Lewis’s Cross Motion for Summary Judgment. A separate order accompanies this
memorandum opinion.
________________________
DABNEY L. FRIEDRICH
United States District Judge
April 3, 2020
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