Electronic Privacy Information Center v. DOJ

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 13, 2021 Decided November 30, 2021
No. 20-5364
ELECTRONIC PRIVACY INFORMATION CENTER,
APPELLEE
JASON LEOPOLD AND BUZZFEED, INC.,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-00957)
Matthew V. Topic argued the cause and filed the briefs for
appellants.
Casen B. Ross, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Acting Assistant Attorney General, and
Sharon Swingle, Attorney.
Before: HENDERSON and TATEL, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Jason
Leopold and BuzzFeed, Inc. (together, BuzzFeed), a media
outlet employing Leopold as a reporter, sued the United States
Department of Justice (DOJ) pursuant to the Freedom of
Information Act (FOIA), 5 U.S.C. § 552. BuzzFeed seeks
disclosure of an unredacted version of the report prepared by
Special Counsel Robert S. Mueller III on his investigation into
Russian interference in the 2016 United States presidential
election (Mueller Report).1 FOIA provides exemptions
permitting an agency to withhold from disclosure certain
categories of information it would otherwise be statutorily
required to disclose. DOJ justified its redactions using several
of these exemptions.
The parties filed cross-motions for summary judgment,
which the district court granted in part and denied in part,
permitting most of DOJ’s redactions. BuzzFeed challenges
only one aspect of its ruling in this appeal: its grant of summary
judgment to DOJ with respect to information redacted pursuant
to FOIA Exemption 7(C), 5 U.S.C. § 552(b)(7)(C), and relating
to individuals investigated but not charged by the Special
Counsel. Exemption 7(C) permits the withholding of law
enforcement records which, if disclosed, “could reasonably be
expected to constitute an unwarranted invasion of personal
privacy.” Id. In granting summary judgment to DOJ, the district
court determined that the privacy interests of the individuals
whose information DOJ withheld under the exemption were
not outweighed by the public’s interest in disclosure of the
redacted information.
1
Although the Electronic Privacy Information Center (EPIC)
also sued DOJ and its suit was consolidated with the one brought by
BuzzFeed, EPIC is not a party to this appeal.
3
We agree but only with respect to redacted passages
containing personally identifying facts about individuals that
are not disclosed elsewhere in the Report and would be highly
stigmatizing to the individuals’ reputations. We disagree,
however, regarding redacted passages that primarily show how
the Special Counsel interpreted relevant law and applied it to
already public facts available elsewhere in the Report in
reaching individual declination decisions. We determine after
our own in camera review of the Report that these passages
show only how the government reached its declination
decisions and do not contain new facts or stigmatizing material.
In so concluding, we follow our pronouncement that “[m]atters
of substantive law enforcement policy are properly the subject
of public concern” and are “a sufficient reason for disclosure
independent of any impropriety.” Citizens for Resp. & Ethics
in Wash. v. Dep’t of Just. (CREW I), 746 F.3d 1082, 1095 (D.C.
Cir. 2014) (citation omitted). Accordingly, we affirm in part
and reverse in part.
I.
We begin with a brief history of the circumstances
surrounding the commencement of Special Counsel Mueller’s
investigation and the release of his Report. Because the district
court ably depicted this history, which the parties do not
dispute, we need not recount it at length here. See Elec. Priv.
Info. Ctr. v. Dep’t of Just. (EPIC I), 442 F. Supp. 3d 37, 40–46
(D.D.C. 2020).
In May 2017, then-Acting Attorney General Rod J.
Rosenstein appointed Special Counsel Mueller to investigate
Russian interference in the 2016 presidential election and to
determine whether any individuals associated with President
Donald Trump’s campaign were linked to or coordinated with
the Russian government. Id. at 40–41. Nearly two years later,
4
in March 2019, Special Counsel Mueller concluded his
investigation and provided Attorney General William Barr
with a report detailing his conclusions. Id. at 41.
After reviewing the Report, Attorney General Barr advised
the Congress of “the principal conclusions reached by Special
Counsel [Mueller]” but did not immediately provide it with
either an unredacted or a redacted version of the Report. Id.(alteration in original). The Attorney General asserted that the
investigation culminating in the Mueller Report “did not find
that the Trump campaign or anyone associated with it
conspired or coordinated with Russia in its efforts to influence”
the 2016 presidential election. Id. He stated further that the
Mueller Report concluded that the evidence developed during
the investigation was not sufficient to establish that President
Trump obstructed justice. Id. at 41–42. Attorney General Barr
also announced his intention to begin the process of
determining what information in the Report was suitable for
public release. Id. at 42. Shortly thereafter, Special Counsel
Mueller advised the Attorney General by letter of his concerns
about the latter’s public characterization of the Report, which
he argued “did not fully capture the context, nature, and
substance of . . . [his] Office’s work and conclusions” and
created “public confusion” about the results of the
investigation. Id. The Attorney General responded with yet
another letter to the Congress maintaining that his initial
communication was merely a summary of the Mueller Report’s
main conclusions and “did not purport to be[] an exhaustive
recounting” of the investigation or the Report. Id.A few weeks later, Attorney General Barr held a press
conference at which he repeated the conclusions expressed in
his first communication to the Congress—namely that the
Trump campaign did not coordinate, conspire or collude with
the Russian government in that government’s scheme to
5
interfere in the presidential election and that there was not
enough evidence to establish that President Trump committed
an obstruction-of-justice offense. Id. at 42–44. He then made
available to the Congress and the public a redacted version of
the Mueller Report and invoked numerous FOIA exemptions
to justify the redactions. See id. at 44–45.
BuzzFeed, along with the Electronic Privacy Information
Center (EPIC), submitted FOIA requests to DOJ seeking a
copy of the unredacted version of the Mueller Report. Id. at 46–
47. Although DOJ granted BuzzFeed’s request for expedited
processing of the FOIA request, it did not produce the
unredacted report by the applicable deadline. Id. at 47.
BuzzFeed then filed this suit in district court. Id. After the
parties filed cross-motions for summary judgment, the district
court ordered DOJ to submit the unredacted version of the
Mueller Report to the court for in camera review. Id. at 52(granting in part and denying in part BuzzFeed’s summary
judgment motion and denying without prejudice DOJ’s
summary judgment motion). The court stated that it would, if
necessary, issue a supplemental ruling on the summary
judgment motions after completing its review. Id.After reviewing the unredacted version of the Report, the
district court then issued the order sub judice. Elec. Priv. Info.
Ctr. v. Dep’t of Just. (EPIC II), 490 F. Supp. 3d 246, 275
(D.D.C. 2020) (granting in part and denying in part both
parties’ motions for summary judgment). It examined DOJ’s
justifications for redacting portions of the Mueller Report
under FOIA Exemptions 3, 5, 6, 7(A), 7(C) and 7(E). Id. at 255;
see 5 U.S.C. § 552(b)(3), (5), (6), 7(A), 7(C), 7(E).
Specifically, it granted DOJ’s summary judgment motion with
respect to (1) grand jury information protected by Exemption 3
and Federal Rule of Criminal Procedure 6(e), which prohibits
disclosure of “matter[s] occurring before the grand jury,” FED.
6
R. CRIM. P. 6(e); (2) intelligence sources and methods
protected by Exemption 3 and the National Security Act,
50 U.S.C. § 3024(i)(1); and (3) law enforcement and privacy
information protected by Exemptions 6, 7(A), 7(C) and 7(E).
Id. at 260, 261, 266, 268, 270. The district court denied DOJ’s
motion and granted BuzzFeed’s motion with respect to
deliberative information regarding charging decisions
allegedly protected by Exemption 5, concluding that DOJ must
disclose the information redacted pursuant to this exemption,
“unless such information has been properly withheld pursuant
to another exemption.”2 Id. at 274. Finally, it determined that
“there are no segregability problems in this case [as] all
reasonably segregable information within [the Mueller Report]
has been released.” Id. at 275 (citation omitted).
With respect to Exemption 7(C)3—the only exemption at
issue on appeal—and the names and personally identifiable
information of individuals investigated but not charged by the
Special Counsel, the district court concluded that DOJ
“adequately explained the harms associated with releasing this
information” and that the individuals’ privacy interests were
not outweighed by the public’s interest in disclosure. Id. at 263,
265. It determined that these individuals—individuals
“including the President’s family, associates, and government
officials”—despite their public prominence, maintained
privacy interests in avoiding the stigma, embarrassment and
other reputational or even physical harm that may come with
being connected to a high-profile public corruption
investigation. Id. at 264–65. BuzzFeed had “failed to show how
the disclosure of individuals’ names would contribute
significantly to public understanding of the operations or
2
DOJ has not challenged the district court’s Exemption 5
determination.
3
Exemption 7(C) is set forth infra at 9–11.
7
activities of the government . . . or would be probative of the
government’s alleged misconduct.” Id. at 265–66 (cleaned up).
BuzzFeed challenges only this aspect of the district court’s
judgment: the grant of summary judgment to DOJ with respect
to information withheld from disclosure under Exemption 7(C)
and coded by DOJ in the redacted Report as “(b)(6)/(b)(7)(C)-
2”—specifically information about individuals investigated but
not charged and the application of law to facts resulting in
particular declination decisions.4 BuzzFeed categorizes the
requested information as follows:
1. Information about the decision not to
prosecute an unnamed person, likely
Donald Trump, Jr., for potential campaign
finance violations under Section 1030. Joint
Appendix (J.A.) 749–50.
2. Information about several people who were
investigated for false statements and
obstruction but not charged. J.A. 764, 768–
69.
3. Information about declination decisions that
appear to relate to contacts between the
4
The district court also granted summary judgment to DOJ
regarding information redacted under Exemption 7(C) that included
the “names, social media account information, and other contact
information of unwitting third parties” and the “names, social media
account information, contact information, and other personally-
identifiable information of individuals merely mentioned in the
[Mueller] Report.” EPIC II, 490 F. Supp. 3d at 262, 266 (alteration
in original). BuzzFeed does not challenge these determinations on
appeal.
8
Russian government and the Trump
campaign. J.A. 579.
4. Information about the decision not to charge
Trump campaign officials with foreign
agent offenses. J.A. 753.
II.
The district court had subject matter jurisdiction pursuant
to 28 U.S.C. § 1331, as the suit presented a federal question
arising under FOIA. BuzzFeed filed a timely notice of appeal
of the district court’s final order granting in part and denying
in part the summary judgment motions, giving this court
appellate jurisdiction under 28 U.S.C. § 1291.
We review de novo the district court’s grant of summary
judgment, applying the same standards that governed the
district court’s decision. Kimberlin v. Dep’t of Just., 139 F.3d
944, 947 (D.C. Cir. 1998). “In a suit brought to compel
production, an agency is entitled to summary judgment if no
material facts are in dispute and if it demonstrates ‘that each
document that falls within the class requested either has been
produced . . . or is wholly exempt from [FOIA’s] inspection
requirements.’” Students Against Genocide v. Dep’t of State,
257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA,
607 F.2d 339, 352 (D.C. Cir. 1978)).
III.
A.
FOIA requires that each government agency, “upon any
request for records which (i) reasonably describes such records
and (ii) is made in accordance with published rules . . . , shall
make the records promptly available to any person.” 5 U.S.C.
9
§ 552(a)(3)(A). The statute “was designed to ‘pierce the veil of
administrative secrecy and to open agency action to the light of
public scrutiny’” but the public’s access to agency documents
and records is not absolute. Dep’t of State v. Ray, 502 U.S. 164,
173 (1991) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352,
361 (1976)). Indeed, FOIA provides specific exemptions
authorizing an agency to withhold from disclosure information
the statute would otherwise require be produced. See 5 U.S.C.
§ 552(b)(1)–(9). Because the exemptions were not designed to
frustrate FOIA’s “goal of broad disclosure,” however, the
Supreme Court has instructed “that the exemptions be ‘given a
narrow compass.’” Milner v. Dep’t of Navy, 562 U.S. 562, 571
(2011) (quoting Dep’t of Just. v. Tax Analysts, 492 U.S. 136,
151 (1989)). Further, the “agency bears the burden of
establishing that a claimed exemption applies.” CREW I,
746 F.3d at 1088 (citing Dep’t of Just. v. Reps. Comm. for
Freedom of the Press, 489 U.S. 749, 755 (1989)).
Under Exemption 7(C), the only exemption we examine
today,5 “records or information compiled for law enforcement
purposes” are protected from disclosure, “but only to the extent
that the production of such law enforcement records or
information . . . could reasonably be expected to constitute an
5
DOJ also justified the redactions of the passages of the Report
at issue here under FOIA Exemption 6, which permits the
withholding of “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion
of personal privacy.” 5 U.S.C. § 552(b)(6). The district court
addressed only Exemption 7(C) because it “establishes a lower bar
for withholding material.” EPIC II, 490 F. Supp. 3d at 262 (quoting
Prison Legal News v. Samuels, 787 F.3d 1142, 1146 n.5 (D.C. Cir.
2015)). BuzzFeed does not challenge this aspect of the district
court’s ruling, conceding “DOJ’s Exemption 6 claims need not be
considered because . . . the standard under Exemption 7(C) is easier
for the government to meet than Exemption 6.” Br. of Appellants 10.
10
unwarranted invasion of personal privacy.”6 5 U.S.C.
§ 552(b)(7)(C). To meet its burden of establishing that
Exemption 7(C) applies, the agency must demonstrate that
(1) disclosure could “reasonably be expected to constitute an
unwarranted invasion of privacy” and (2) the “personal privacy
interest” is not “outweighed by the public interest in
disclosure.” Nat’l Archives & Recs. Admin. v. Favish, 541 U.S.
157, 160 (2004). Once the agency shows that the “privacy
concerns addressed by Exemption 7(C) are present,” the party
seeking disclosure must show “that the public interest sought
to be advanced is a significant one, an interest more specific
than having the information for its own sake,” and that “the
information is likely to advance that interest.” Id. at 172. If the
asserted public interest is “to show that responsible officials
acted negligently or otherwise improperly in the performance
of their duties, the requester must produce evidence that would
warrant a belief by a reasonable person that the alleged
Government impropriety might have occurred.” Id. at 174.
Asserting certain other public interests, as we explain below,
does not require such an evidentiary showing. See, e.g., CREW
I, 746 F.3d at 1095 (no evidentiary requirement when asserting
the public’s interest in matters of substantive law enforcement
policy).
We have held that “individuals have an obvious privacy
interest cognizable under Exemption 7(C) in keeping secret the
fact that they were subjects of a law enforcement
investigation.” Citizens for Resp. & Ethics in Wash. v. Dep’t of
Just. (CREW II), 854 F.3d 675, 682 (D.C. Cir. 2017) (quoting
6
BuzzFeed has not contested in district court or on appeal
Exemption 7(C)’s threshold requirement that the Mueller Report
must have been compiled for law enforcement purposes. EPIC II,
490 F. Supp. 3d at 261 n.5; Br. of Appellants 10 (acknowledging
“there is no dispute that the [Mueller] Report meets the Exemption 7
law enforcement threshold”).
11
Nation Mag. v. U.S. Customs Serv., 71 F.3d 885, 894 (D.C. Cir.
1995)). This privacy interest indisputably exists here. We must
therefore “balance the . . . privacy interest against the public
interest in disclosure.” Favish, 541 U.S. at 171.
B.
We turn first to an examination of the personal privacy
interests at stake and find much to commend in the district
court’s extensive analysis of those interests. See EPIC II, 490
F. Supp. 3d at 262–65. Surveying this Court’s case law, the
district court highlighted our longstanding recognition that
“individuals have a strong interest in not being associated
unwarrantedly with alleged criminal activity,” Stern v. Fed.
Bureau of Investigation, 737 F.2d 84, 91–92 (D.C. Cir. 1984),
“disclosing the identity of targets of law-enforcement
investigations can subject those identified to embarrassment
and potentially more serious reputational harm,” Senate of P.R.
v. Dep’t of Just., 823 F.2d 574, 588 (D.C. Cir. 1987), and “the
mention of an individual’s name in a law enforcement file . . .
carries a stigmatizing connotation,” Schrecker v. Dep’t of Just.,
349 F.3d 657, 666 (D.C. Cir. 2003). See EPIC II, 490 F. Supp.
3d at 264 (collecting cases).
BuzzFeed does not contest the significant privacy interests
at stake here. Instead, it posits that the privacy interests are
diminished because “the people in these records were high-
ranking members of the Trump presidential campaign” and “it
is already publicly known that specific members of the Trump
campaign were included in the Special Counsel’s
investigation.”
We have indeed stated that public officials “may have a
somewhat diminished privacy interest” in the Exemption 7(C)
balancing analysis. CREW I, 746 F.3d at 1092 (quoting Quinon
v. Fed. Bureau of Investigation, 86 F.3d 1222, 1230 (D.C. Cir.
12
1996)). Of the individuals whose privacy interests may be
jeopardized by disclosure of the requested information, only
one is a public official. The remaining individuals are private
citizens who served on a presidential campaign. And at oral
argument BuzzFeed’s counsel could not identify a case in
which we or any other court has held that a private citizen’s
personal privacy interests are diminished merely by virtue of
his service on a presidential campaign. All BuzzFeed can
muster are cases in which we have suggested that a citizen’s
status as a public figure “might” ultimately weigh in favor of
disclosure, Fund for Const. Gov’t v. Nat’l Archives & Recs.
Serv., 656 F.2d 856, 865 (D.C. Cir. 1981), and that “corporate
officials may have a somewhat diminished interest in personal
privacy,” id. at 873 (emphasis added). See also Nation Mag.,
Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 894 n.9
(D.C. Cir. 1995) (“candidacy for federal office may diminish
an individual’s right to privacy”) (emphasis added). We
hesitate to extend this somewhat equivocal reasoning to
undermine the significant privacy interests of private citizens
serving on a presidential campaign. And because this dispute
can be resolved without such an extension, we decline
BuzzFeed’s invitation to do so, leaving open for future panels
the question whether presidential campaign officials have
diminished privacy interests.
BuzzFeed’s second rationale for finding that the privacy
interests are diminished is stronger but still misses the mark.
Although the names of Trump campaign officials appear in
public portions of the Report, they retain a privacy interest in
“avoiding disclosure of the details of the investigation.”
Kimberlin, 139 F.3d at 949. “[T]he fact that [an individual] was
under investigation” is distinct from the “privacy interest in the
contents of the investigative files.” CREW I, 746 F.3d at 1092.
This, of course, makes sense because disclosure of the latter
“could reveal new information about a person’s conduct, going
13
beyond the facts in the public record.” CREW II, 854 F.3d at
682. “Under such circumstances, that individual would retain a
privacy interest in the non-disclosure of the new information.”
Id. Disclosure of the new facts could expose the individual to
the very reputational and stigmatizing harms against which we
have found Exemption 7(C) protects.
That’s not what we have here, however—at least with
respect to the declination decisions relating to purported
campaign violations, which make up three of the four
categories of redacted information identified by BuzzFeed.
After conducting our own in camera review of the unredacted
Mueller Report, we determined that the factual and personally
identifying information alleged to be contained in the redacted
passages on pages 579, 749–50 and 753 of the Joint Appendix
is available elsewhere in the Report. See J.A. 629–30, 693–99.
The redacted passages contain no new facts; they contain no
new information or descriptions of conduct that have not been
made public elsewhere in this very Report. The privacy
interests, then, are not robust, as no additional reputational or
stigmatizing harm can result from the disclosure of the
information contained therein. Regarding the requested
information on pages 764 and 768–69 of the Joint Appendix,
on the other hand, the redacted materials there contain
additional facts about individuals that are not disclosed or even
intimated elsewhere in the Report. The individuals discussed in
these passages “retain a privacy interest in the non-disclosure
of the new information.” CREW II, 854 F.3d at 682.
In sum, the privacy interests of the individuals investigated
for campaign violations are diminished, but not eliminated, by
disclosure of the relevant facts elsewhere in the Report. The
individuals purportedly investigated for false statements—the
fourth category alluded to above—retain a significant privacy
interest in the contents of the Report because the redacted
14
sections include new facts that would be stigmatizing. As we
explain infra, this disparity ultimately alters the balancing
analysis between the campaign-violation information and the
false-statement information.
Turning to the public interest side of the equation, we
agree with the district court that “the public interest in the
Special Counsel’s investigation is substantial.” EPIC II, 490 F.
Supp. 3d at 265. The district court did not, however, identify
the particular public interest considered in concluding that
BuzzFeed “failed to show that the information sought is likely
to advance the public interest in disclosure” and “how the
disclosure of individuals’ names would ‘contribute
significantly to public understanding of the operations or
activities of the government.’” Id. (quoting Consumers’
Checkbook, Ctr. for the Study of Servs. v. Dep’t of Health &
Hum. Servs., 554 F.3d 1046, 1051 (D.C. Cir. 2009)). It is here
that we part ways with the district court and conclude that
BuzzFeed has identified a significant public interest previously
recognized by this court and has made the required showing
linking the disclosure with the advancement of the public
interest: “[W]hether the Special Counsel adequately
investigated and reached proper declination decisions as to
potential crimes by members of the Trump campaign.” In other
words, the redacted material covers how the Special Counsel
carried out his duties to investigate and prosecute criminal
conduct. CREW I, 746 F.3d at 1093 (citing Quinon, 86 F.3d at
1231). This public interest suffices to tip the balance in favor
of disclosure, at least with respect to the information relating to
individuals investigated for campaign violations, as the factual
circumstances surrounding this portion of the investigation are
15
already publicly available in the unredacted portions of the
Report.
In CREW I, we recognized a “weighty public interest in
shining a light on the FBI’s investigation of major political
corruption and the DOJ’s ultimate decision not to prosecute a
prominent member of Congress.” 746 F.3d at 1092–93. In
doing so, we followed decades of United States Supreme Court
precedent, which holds that “the only relevant public interest
in the FOIA balancing analysis [is] the extent to which
disclosure of the information sought would ‘she[d] light on an
agency’s performance of its statutory duties’ or otherwise let
citizens know ‘what their government is up to.’” Dep’t of Def.
v. Fed. Lab. Rels. Auth., 510 U.S. 487, 497 (1994) (quoting
Reps. Comm., 489 U.S. at 773). “[M]atters of substantive law
enforcement policy,” we added, “are properly the subject of
public concern.”7 CREW I, 746 F.3d at 1093 (quoting Reps.
Comm., 489 U.S. at 766 n.18) (also collecting cases
recognizing a public interest in how the Executive carries out
substantive law enforcement policy). We have also stressed
that the “relevant public interest is not to find out what [the
official] himself was ‘up to’ but rather how the FBI and the
DOJ carried out their respective statutory duties to investigate
and prosecute criminal conduct.” Id. (citing Quinon, 86 F.3d at
1231).
Having identified a significant public interest, BuzzFeed
must still show that “the information is likely to advance that
interest.” Favish, 541 U.S. at 172. We believe it has done so. It
seeks disclosure of “passages contain[ing] detailed legal
analysis that shows how the Special Counsel interpreted the
7
No showing of impropriety or illegality is required, as matters
of substantive law enforcement policy are recognized public interests
“whether or not the policy in question is lawful.” Am. Civ. Liberties
Union v. Dep’t of Just., 655 F.3d 1, 14 (D.C. Cir. 2011).
16
relevant law and applied it to the facts in reaching the
declination decisions.” This, BuzzFeed argues, “is precisely the
kind of information that would allow the public to understand
substantive matters of important law enforcement policy.”
Turning once again to CREW I, we agree. “Disclosure of the
[information] would likely reveal much about the diligence of
the [Special Counsel’s] investigation and the [] exercise of [his]
prosecutorial discretion: whether the government had the
evidence but nevertheless pulled its punches.” CREW I,
746 F.3d at 1093. Disclosure would also show how the Special
Counsel interpreted the relevant law and applied it to already
public facts in reaching his declination decisions. We reject
DOJ’s argument that the public interest is reduced because
“[m]ost of the Mueller Report has already been disclosed” and
the “Congress has also released a substantial volume of
information about the events underlying the Special Counsel’s
investigation.”8 Those statements, in and of themselves, may
be true but they are irrelevant to the fact that the Special
Counsel’s legal analysis that led to the declination decisions
has not been released and likely would “contribute significantly
to public understanding of the operations or activities of the
government.” Reps. Comm., 489 U.S. at 775. Thus, BuzzFeed
has identified a significant public interest and demonstrated
how disclosure will advance that interest.
We turn finally to the balancing of the public and privacy
interests at stake, following the “case-by-case” approach we
8
DOJ’s reliance on our decision in Judicial Watch, Inc. v.
National Archives & Records Administration, 876 F.3d 346 (D.C.
Cir. 2017), is also misplaced. That case is distinguishable. The FOIA
requesters there sought copies of draft indictments against Hillary
Rodham Clinton related to the Independent Counsel’s investigation
in the early 1990s. Id. at 347. Unlike here, it did not involve
information that would show how law enforcement applied law to
facts to reach a charging or declination decision.
17
have previously endorsed. CREW I, 746 F.3d at 1095. As
discussed, there are substantial interests on both sides of the
scale. The public interest in matters of substantive law
enforcement policy is strong with respect to each category of
redacted information sought by BuzzFeed. The privacy
interests, undoubtedly significant, are slightly less (although
not eliminated) with respect to the individuals whose
personally identifiable information is already available in
public portions of the Report in the context of potential
criminal charges. We refer to these broadly as the three
categories of information that detail the declination analysis for
purported campaign violations. For this material, the strong
public interest tips the scale in favor of disclosure, as releasing
this information would show only government
decisionmaking, not new private information. The privacy
interests relating to individuals investigated for but not charged
with making false statements, however, remain significant. On
our read, this material contains additional facts about
individuals that are not disclosed elsewhere and that would be
highly stigmatizing. We therefore conclude that their
substantial privacy interests tip the scale in favor of non-
disclosure for this category of material.
Accordingly, we reverse the district court’s grant of
summary judgment to DOJ on its Exemption 7(C) withholding
claims for the information regarding the Special Counsel’s
declination decisions on the purported campaign violations.
The district court is to order DOJ to disclose the material it
withheld pursuant to Exemption 7(C) only on the following
pages of the Joint Appendix: 579, 749–50 and 753. The
relevant material is marked by the notation “(b)(6)/(b)(7)(C)-
2.”9 In all other respects, we affirm the district court’s grant of
9
We note that portions of the material relating to false
statements are also marked by the notation “(b)(3)-1.” This notation
18
summary judgment to DOJ on its Exemption 7(C) withholding
decisions.
So ordered.
covers the entire redacted material on J.A. 764 and portions of the
material on J.A. 769. It refers to FOIA Exemption 3, which protects
materials “specifically exempted from disclosure by statute.”
5 U.S.C. § 552(b)(3). In these portions, information was withheld
under Exemption 3 because it constitutes federal grand jury
information, prohibited from disclosure by Federal Rule of Criminal
Procedure 6(e). The district court granted DOJ’s motion for summary
judgment on its Exemption 3 withholding claims, EPIC II, 490 F.
Supp. 3d at 260, and BuzzFeed does not challenge that ruling. Thus,
Exemption 3 provides an alternative basis for withholding from
disclosure these portions of the passages relating to false statements,
independent of our Exemption 7(C) analysis. Our decision today
does nothing to disturb the district court’s Exemption 3
determination.