Citizens for Responsibility and Ethics in Washington v. U.S. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY )
AND ETHICS IN WASHINGTON, )
)
Plaintiff, )
) CiVil Case N0. 11-592 (RJL)
v. )
)
U.S. DEPARTMENT OF JUSTICE, )
)
Defendant. ) l: I l_ E D
)
MAR 3 0 2015
C|erk, U.S. District & Bankruptcy
W Courts for the District of C0|umbia
MEMORANDUM OPINION
(Marc@b%l® [Dkts. ##29, 32]
This action comes before the Court on remand from the Court of Appeals for the
District of Columbia Cirouit. Plaintiff, Citizens for Responsibility and Ethics in
washington ("plaintiff" or "CREW"), brings this action against the U.S. Department of
Justice ("defendant" or "DOJ") under the Freedom of Inforrnation Act ("FOIA"),
5 U.S.C. § 552, et seq., seeking records from the Federal Bureau of Investigation ("FBI"),
a component of the DOJ. Before the Court are defendant’s Motion for Summary
Judgment ("Def.’s Mot.") [Dkt. #29] and plaintiffs Cross-Motion for Partial Summary
Judgment ("Pl.’s Mot.") [Dkt. #32]. Upon consideration of the parties’ pleadings, the
relevant law, and the entire record herein, defendant’s Motion for Summary Judgment is
GRANTED and plaintiffs Cross-Motion for Partial Summary Judgment is DENIED.
BACKGROUND
By letters dated October l9, 2010, plaintiff sought from the FBI and the Cri1ninal
Division of the DOJ ("CRM"), "any witness statements, investigation reports,
prosecution memoranda, and [FBl] 302 reports related to the FBI’s and DOJ’s
investigation of former House Majority Leader Tom DeLay[,] . . . includ[ing] . . . the
FBI’s and DOJ’s investigation of relationships between Mr. Delay" and various other
individuals and organizations.‘ Second Decl. of David M. Hardy ("Hardy Decl. lI") 1[ 5
[Dkt. #29-3]. The FBI responded, and without either confirming or denying whether it
possessed responsive records, informed plaintiff that it could not release records
regarding a third party absent authorization from the third party involved, proof that the
third party was deceased, or a clear demonstration that the public interest in disclosure
outweighed the third party’s personal privacy interest and that a significant public benefit
would result from disclosure of the requested records. Def.’s Second Stmt. of Mat. Facts
("Def.’s Second SOl\/[F") 11 2 [Dkt. #29-2]; see CREW v. Dep’t ofJustice, 87"0 F. Supp.
2d 70, 76 n.4 (D.D.C. 2012). Plaintiff did not provide either authorization or evidence of
death, and the FBI found no "public justification for release." Def.’s Second SOMF 1[ 2.
Accordingly, the FBI categorically withheld the responsive records pursuant to FOIA
Exemptions 6 and 7(C), and further invoked Exemptions 2, 3, 7(A), 7(D), an_d 7(E).
Def.’s Second SOMF 1[ 2, 4. The CRM separately conducted a search for its responsive
‘ The individuals and organizations were "Christine DeLay, Dani DeLay, lack Abramoff, Edwin
Buckham, Tony Rudy, Michael Scanlon, Susan Hirshmann, the Alexander Strategy Group, the National
Ce_nter for Public Policy Research, eLottery, lnc., the U.S. Family Network, Americans for a Republican
l\/Iajority PAC (‘ARMPAC’), Texans for a Republican l\/lajority PAC (‘TRMPAC’), and/or the
Commonwealth of the Northern Marianas Islands." Hardy Decl. ll 1[ 5.
failure to assert Exemption 5 in regards to the FBI’s records in the original proceedings,
and, therefore, the first two exceptions are inapplicable here. Instead, the bulk of
defendant’s argument is that forbidding its invocation of Exemption 5 here would not
support the policy considerations supporting the waiver rule. The first such policy
consideration is "the interest in judicial finality and economy, which has ‘special force in
the FOIA context, because the statutory goals_efficient_, prompt_, and full disclosure of
information-can be frustrated by agency actions that operate to delay the ultimate
resolution of the disclosure request." August, 328 F.3d at 699 (quoting Senate ofPuerto
Rz`co, 823 F.Zd at 58()). The second is the interest in precluding the government from
"play[ing] cat and mouse by withholding its most powerful cannon until after the District
Court has decided the case and then springing it on surprised opponents and the judge."
Id. (quoting Senate of Puerto Rz'co, 823 F.2d at 580).
The propriety of the FBl’s withholding of relevant records was litigated before this
Court already, and I considered and ruled upon every claim the FBl raised. The case
went up to the Court of Appeals, which narrowed the issues. In general, permitting a
defendant to raise a new claim of exemption for this first time at this late stage could
result in dragging a plaintiff back to the starting line. But that is not the case here.
Plaintiff does not dispute that Exemption 5 shields the material at issue from disclosure,
and therefore there is no occasion for delaying the process with presentation and
consideration of fresh arguments about the applicability of the exemption. Cf Maydak,
218 F.3d at 764 ("[T]he delay caused by permitting the government to raise its FOIA
exemption claims one at a time interferes both with the statutory goals of efficient,
ll
prompl, and full disclosure ofinforination.").
As to the second, defendant asserts that given its initial invocation of Exemption 5
regarding the CRl\/l’s prosecution memoranda and the reasoning it set forth thereto, no
one should be surprised by its hot-off-the-press argument. Def.’s Rep. 17. To the
contrary, defendant’s assertion of Exemption 5 as to the material at issue was most
certainly unexpected given the history of the case. However, the Court agrees that
defendant’s behavior is not consistent with gamesmanship. Defendant never withheld its
general argument that the DOJ attorneys’ "distillation of facts, legal analyses, opinions,'
and recommendations about whether to prosecute certain individuals" falls within
Exemption 5. Ellis Decl. \l 48. That defendant now seeks to withhold similar material
for the same reasons does not appear to be the intentional sandbagging warned against in
Mczya'ak but instead "at most a lack of precision." judicial Watch, Inc. v. Dep’t of
Jusz‘z`ce, 41 F. Supp. 3d 39, 45 n.2 (D.D.C. 2014).
On the whole, the Court is convinced precluding defendant from asserting
Exemption 5 as to the material at issue would not advance the policy goals supporting the
Maydak rule. l will therefore allow it.z 'I`his conclusion is bolstered by the fact that
defendant’s arguments regarding the application of Exemption 5 to the material at issue
are "sufiiciently strong." Sussman v. U,S. Marshall Serv., 494 F.Sd llO6, lll9 (D.C. Cir.
2007). Exemption 5 serves to secure the legitimate governmental interest in "enhanc[ing]
2 The Department should understand it prevailed on this issue by the skin of its teeth. This Court is
particularly displeased by defendant’s 1nisrepresentation in its brief in support of its second Motion for
Summary Judgment that the FBI had withheld material pursuant to Exemption 5 in the first round of
summary judgment, Def.’s Second Mem. 3, and defendant’s failure to explain or take responsibility for
the mishap here. The Depart1nent would do well to take affirmative steps to prevent this situation from
occurring again.
12
the quality of agency decisions by protecting open and frank discussion among those who
make them within the Government." De_p’t of Inl"erz`or v. Klczmath Wczter Users
Prozective .Ass’n, 532 U.S. 1, 9 (2001) (internal citations omitted). ‘Further, the
exemption protects the attorney-client privilege, thereby serving the privilege’s purpose
of "encourag[ing] full and frank communication between attorneys and their clients and
thereby promot[ing] broader public interests in the observance of law and administration
of justice." Upjohn C0. v. Um'ted Srates, 449 U.S. 383, 389 (1981). These interests
would be harmed by disclosure here. l\/loreover, notwithstanding Maydak, "there is no
rule that prohibits the district court, sua sponte[,] from applying the law in order to
achieve a just result." Cuban, 795 F. Su_pp. 2d at 61 (alteration in original) (quoting
Willz'ams v. FBI, No. 91-1054, 1997 WL 198109, at *2 (D.D.C. Apr. 16, l997)). Turning
to the merits, I tind, as defendant argues and plaintiff concedes, defendant properly
withheld pages DeLay 123-128 pursuant to FOIA Exemption 5.'
II. FOIA Exemptions 6 and 7(C)
Both Exemption 6 and Exemption 7(C) protect an individual’s privacy interest
when balanced against the public interest in disclosure. Exemption 6 protects "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). Exemption 7(C)
excludes "records or information compiled for law enforcement purposes . . .to the
extent that production of such law enforcement records or information . . . could
reasonably be expected to constitute an unwarranted invasion of personal privacy."
Id, § 552(b)(7)(C). Thus, in determining the applicability of Exemptions 6 and 7(C), the
13
Court must balance the interests advanced by FOIA’s disclosure requirements against the
privacy interests of the individuals mentioned in the records. Beck v. Dept. of Justice,
997 F.Zd 1489, 1491 (D.C. Cir. 1993). Because Exemption 7(C) "establishes a lower bar
[than Exemption 6] for withholding inaterial," ACLU v. Dep’l of Justice, 6_55 F.3d 1, 6
(D.C. Cir. 2()11), the Court focuses its analysis on whether the records were properly
withheld under Exemption 7(C). See, e.g., Jua'icial Wcztch, Inc. v. U.S. Dep ’t of Justz'ce,
898 F. Supp. 2d 93, 102-03 (D.D.C. 2012). P1aintiff concedes that the "disputed
information was ‘compiled for law enforcement purposes’ and thus satisfies the
Exemption 7(C) threshold." Pl.’s Second Mem. 11 n.S; see also 5 U.S.C. §552(b)(7).
Therefore, the task at hand is to "to balance the [ ] privacy interest against the public
interest in disclos.ure." CREW, 746 F.?>d at 1091 (alteration in original) (quoting Nat’l
Archz'ves & Records Aa’min. v. Fczvz`sh, 541 U.S. 157, 171 (2004)).
Citing exemptions 6 and 7(C), the FBI withheld the names and identifying
information of (1) third parties who provided information to the FBI, (2) FBI Special
Agents and support personnel, (3) third parties mentioned in investigative records,
(4) third parties of investigative interest to the FBI, and (5) non-FBI and federal
government personnel. Def.’s Second Me1n. 17. The FBI did not, however, redact
Messrs. DeLay and Abramoff` s names from the responsive records. Pl.’s Second Mem.
16 n.l2. Plaintiff does not challenge the withholding of information related to FBI
' Special Agents and support personnel or to non-FBI and federal government personnel,
but maintains that defendant has failed to establish that all the withheld information
14
related to third parties is exempted from disclosure. Pl.’s Second Mem. l0.
The various third parties all have substantial privacy interests at stake.
"[I]ndividuals have a strong interest in not being associated unwarrantedly with.alleged
criminal activity." Stern v. FBI, 737 F.Zd 84, 91-92 (D.C. Cir. 1984). This interest
extends to those who are subjects of criminal investigations, see Funcz’for Constituz‘z'onal
Gov’t v. Nat’l Archives & Records Serv., 656‘F.2d 856, 864 (D.C. Cir. 1981) ("There can
be no clearer example of an unwarranted invasion of personal privacy than to release to
the public that another individual was the subject of an FBI investigation."), and is
particularly strong where individuals have "been investigated but never publicly charged
at all." -A CL U, 655 F._°>d at 7. The substantial privacy interest in information contained in
law-enforcement records also extends to other "third parties who may be mentioned in
investigatory files, as well as to witnesses and informants who provided information
during the course of an investigation." Natz'on Magazz`ne v. U.S. Customs Serv., 7l F.?>d
885, 894 (D.C. Cir. 1995); see also Schrecker v. Dep’t of.fusz‘z'ce, 349 F.3d 657, 661
(D.C. Cir. 20()3) ("[O]ur decisions have consistently supported nondisclosure of names or
other information identifying individuals appearing in law enforcement records, including
investigators, suspects, witnesses, and informants.").
Plaintiff argues that those third parties who have been publicly identified as having
been charged, convicted, or otherwise implicated in the Department’s broad public
corruption investigation or those who publicly testified in criminal trials arising from that
investigation have at most a minimal privacy interest in having their names withheld.
Pl.’s Second Mem. 12-13. Plaintiff claims those individuals would not suffer
15
embarrassment or reputational harm from being publicly connected to the investigation,
because their connection to it has already been made known. Pl.’s Second Mem. 14.
Plaintiff maintains to the extent those individuals’ names appear in the responsive
docu1nents, they must be released. Pl.’s Mem. 13-14.
Plaintiffs cite, inter alz`a, Dep’t of Justz'ce v. Reporlers Commz'z‘tee for Freeo’om of
the Press, 489 U.S. 749, 763 n.l5 (1989), for the proposition that the "interests in privacy
fade when the information involved already appears on the public record." But
individuals do not lose their privacy interest in avoiding unwarranted association with a
criminal investigation merely because some information becomes publicly known. See,
e.g., Ellz'ott v. FBI., No. 06-1244, 2007 WL 1302595, at *6 (D.D.C. May 2, 2007) ("The
fact that these individuals’ identities were disclosed at a public trial does not diminish
their privacy interests."); Judz'cz`al Wotch, Inc. v. FB]., No. 00-745, 2001 WL 35612541,
at *6 (D.D.C. Apr. 20, 2001) ("The fact that the requester might be able to figure out the
individuals’ identities through other means or that their identities have been disclosed
elsewhere does not diminish their privacy interests for purposes of" Exemption 7(C)).
Instead, to establish a that privacy interest has been waived, the plaintiff bears "the initial
burden ofpointing to specific information in the public domain that appears to duplicate
that being withheld."3 Davz's v. Dep't of.]ustice, 968 F.Zd 1276, l279 (D.C. Cir. 1992);
see also Showing Am`mals Respect & Kindness v. Dep ’t oflm‘erior, 730 F. Supp. 2d 180,
3 Our Circuit C0urt has also held that an individual’s voluntary public disclosure of his connection to an
investigation "effectively waive[s his] right to redaction of his name from documents on events that he
has publicly discussed." Nation Magazine, 7l F.3d at 896. Plaintiffs do not argue any such voluntary
divulgence took place here.
16
197-98 (D.D.C. 20l0) ("[A]n agency need not disclose an exempt record unless there is
an identical record in the public domain, and it is the requester’s burden to show that the
information is freely available."). Plaintiff has not met its burden of precision here.
Plaintiff alleges only that certain individuals have been publicly associated with the
Department’s large-scale public corruption investigation. Plaintiff does not point to any
information in the public domain confirming the individuals whose names are redacted
have been publicly associated specifically with the investigation into Mr. DeLay or into
the precise conduct or event-s discussed on the pages with redacted names and identifying
information. Thus, the third parties continue to have a substantial privacy interest, and
their names "are presumptively exempt from disclosure." Schrecker, 349 F.3d at 666; see
also io’. (quoting Sczfecaro’, 926 F.Zd at 1206, for the proposition "that information in law
enforcement records identifying private individuals is exempt from disclosure unless
release is necessary to ‘confirm or refute compelling evidence that the agency is engaged
in illegal activity"’).
Having found substantial privacy interests at stake, the Court turns to assess the
public interest in disclosure. See CREW, 746 F.?>d at l09l. As our Circuit Court found,
there is "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 the Congress for any involvement he may have had." Ia’. at 109'2-93. "That is, the
relevant public interest is not to find out what DeLay himself was ‘up to’ but rather how
the FBI and the DOJ carried out their respective statutory duties to investigate and
prosecute criminal conduct." Ia’. at 1093; see also z'a’. (describing the public interest in the
17
level of "diligence of the FBI’s investigation and the DOJ’s exercise of its prosecutorial
discretion[ and] whether the government had the evidence but nevertheless pulled its
punches").
Plaintiff contends this public interest would be served by releasing the redacted
names and identifying information and thereby shedding additional light on the
Department’s investigation as it related to Mr. DeLay’s connections to other individuals
and entities. Pl.’s Second Mem. l5. I disagree. While releasing the withheld names
would provide more information about Mr. DeLczy’s conduct and associations, it is
unclear from plaintiffs argument how doing so would serve the public interest in
shedding light on how the Deparz‘ment conducted the investigation, the level of diligence
and resources it put forth, and the amount of evidence it surmounted. Indeed, our Circuit
Court has repeatedly rejected similar arguments, finding only a weak public interest in
the disclosure of names and other identifying information contained in law enforcement
records as such information is "simply not very probative of an agency’s behavior or
performance." Safecarcz’, 926 F.2d at 1205; see also Schrecker, 349 F.3d at 666 (D.C.
Cir. 2003).
Assu1ning arguendo there is an "incremental public interest" at stake, Safecara’,
926 F.Zd at l206, it is weak and does not outweigh the third parties’ substantial interest in
nondisclosure. Thus, defendant was justified in withholding the names and identifying
information of the relevant third parties.
18
CONCLUSION
For all of the foregoing reasons, the defendant’s Motion for Summary Judgment is
GRANTED and the plaintift’s Cross-Motion for Partial Summary Judgment is DENIED.
An Order consistent with this decision accompanies this Memorandum Opinion.
United States I' riot Judge
records, but withheld them pursuant to Exemption 7(A) of the FOIA. Def.’s First Stmt.
of Mat. Facts ("Def.’s First SOMF") 1[ 15-16 [Dkt. #9-2]. The CRM subsequently
determined the requested records should also be withheld pursuant to FOIA Exemptions
3, 5, 6, and 7(C). Def.’s First SOMF 11 17-18.
Plaintiff filed the present action on March 22, 201 l. See Compl. [Dkt. #l]. The
parties promptly cross-moved for summary judgment. Defendant’s brief discussed the
exemptions set forth by both the FBI and the CRM, see generally Def.’s First Mem. in
Supp. of Its Mot. for Summ. J. ("Def.’s First Mem.") 35-38 [Dkt. #lO-l], and attached
were affidavits from both FBI and CRM officials. First Decl. of David M. Hardy
("Hardy Decl. I") [Dkt. #9-3]; Decl. of Kristen L. Ellis ("Ellis Decl.") [Dkt. #9-6].
However, plaintiff’ s brief made clear that it was only challenging the FBI’s response,
Pl.’s First Me1n. in Partial Opp’n to Def.’s Mot. for Summ. J. and in Supp. of Pl.’s Cross-
Mot. for Summ. J. (Pl.’s First Mem") 5-6 [Dkt. #12], and thereafter the parties and this
Court addressed only those exemptions raised by the FBI. This Court granted
defendant’s Motion for Summary Judgment, and denied plaintiffs Cross-Motion for
Partial Summary Judgment, finding the FBI had conducted a reasonable search and
properly withheld documents pursuant to the FOIA exemptions 2, 3, 6, 7(A), 7(C), 7(D),
and 7(E). CREW, 870 F. Supp. 2d at 78-85. On _July 20, 2012, plaintiff appealed this
Court’s decision. Notice of Appeal [Dkt. #23]. On April l, 2014, our Circuit Court
issued an opinion reversing this Court’s ruling and finding that defendant had not
sufficiently justified its categorical withholding under Exemptions 7(A) or 7(C) and,
furthermore, had not provided sufficient detail as to whether the requested records could
properly be withheld under Exemptions 3, 7(D_`)_, and 7(E). CREWv. Dep ’t of Justz`ce, 746
F.3d l().82, llO2 (D.C. Cir. 20l4). As such, the Circuit Court remanded this case for
further proceedings. Ia’.
Thereafter, the FBI ran its search for responsive records anew, using the same
parameters and garnering the same results as in its initial search. Def.’s Second
SOMF M 8-ll. After reviewing the results, the FBI determined the search had yielded
328 pages of responsive material. Def.’s Second SOMF 11 13; Hardy Decl. ll 11 15.
Invoking FOIA Exemptions 3, 5, 6, 7(C), 7(D), and 7(E), the FBI released 124 pages,
many of which contained redactions, to plaintiff and withheld in full the remaining 204
pages. Def.’s Second SOMF 1 15; Pl.’s Second Mem. in Partial Opp’n to Def.’s Mot. for
Summ. J. and in Supp. of Pl.’s Cross-Mot. for _Summ. J. ("Pl.’s Second Mem") 5
[Dkt. #32]. On April 2, 2015, defendant moved for summary judgment. On May 5,
2015, plaintiff moved for partial summary judgment, seeking review, once again, of
defendant’s asserted FOIA exemptions Plaintiff challenges, and thus the Court
addresses, only de_fendant’s withholdings pursuant to FOIA Exemptions 5, 6, and 7(‘C).
Pl.’s Second Mem. 7, lO.
STANDARD OF REVIEW
"FOIA cases typically and appropriately are decided on motions for summary
judgment." Defenders of Wz`la’lzfe v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87
(D.D.C. 2009). Summary judgment shall be granted when the movant demonstrates "that
there is no genuine dispute as to any material fact and that the movant is entitled to
judgment as a lnatter of law." Fed. R. Civ. P. 56(a). "When assessing a motion for
summary judgment under FOIA, the Court shall determine the matter de novo." Judz'cial
Walch, Inc. v. Dep’z‘ ofHomelcma' Sec., 598 F. Supp. 2d 93, 95 (D.D.C. 2009) (citing
5 U.S.C. § 552(a)(4)(B)). Under FOIA, "upon any request for records which (i)
reasonably describes such records and (ii) is made in accordance with published
rules . . ., [an agency] shall make the records promptly available to any person." 5
U.S.C. § 552(a)(3)(A). Congress has exempted nine categories of documents from the
disclosure requirement, but, because there is a "strong presumption in favor of
disclosure," Nat’l Ass’n ofHome Buz'lders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002)
(quoting Dep’t of State v. Ray, 502 U.S. 164, 173 (l99l)), the exemptions "are to be
‘narrowly construed,"’ z'a’. (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976)). ln a FOIA action, the 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."’ Stucz’ents Agaz`nst Genocz'a’e v. Dep't ofStatej 257 F.3d 828, 833 (D.C.
Cir. 200l) (alterations in original) (quoting Golczna’ v. CIA, 607 F.2d 339, 352 (D.C. Cir.
1978)).
"An agency withholding responsive documents from a FOIA release bears the
burden of proving the applicability of claimed exemptions[,]" which it typically does "by
affidavit." Am. Civz`l Liberlies Unz'on v. Dept. ofDefense, 628 F.3d 6l2, 619 (D.C. Cir.
201 l). The Court may award summary judgment based solely on information provided
in affidavits or declarations if they "describe the documents and the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith." Milz'tary Aua’it Project v.
Casey, 656 F.Zd 724, 738 (D.C. Cir. 1981). Such affidavits or declarations "are accorded
a presumption of good faith, which cannot be rebutted by purely speculative claims about
the existence and discoverability of other documents." SafeCard Servs., Inc. v. SEC,
926 F.2d ll97,' 1200 (D.C. Cir. l99l). "Ultimately, an agency’s justification for
33
invoking a FOIA exemption is sufficient if it appears logical or plausible. Larson v.
Dep’t of Staz‘e, 565 F.3d 85'7, 862 (D.C. Cir. 2009). "If an agency’s statements
supporting exemption contain reasonable specificity of detail as to demonstrate that the
withheld information logically falls within the claimed exemption and evidence in the
record does not suggest otherwise, . . .the court should not conduct a more detailed
inquiry . . . ."Ia’. at 865.
ANALYSIS
I. FOIA Exemption 5
De:t`endant seeks to withhold six responsive pages that it calls "pages DeLay
123-128" pursuant to FOIA Exemption 5, 5 U.S.C. § 552(b)(5), which exempts from
disclosure "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." Def.’s
Second Mem_. in Supp. of Its l\/Iot. for Summ. J. (Def.`.’s Second l_\/[ein.") ll~l6
[Dl847 F. Supp. 2d 6, 14
(D.D.C. 2012).
Defendant represents that the six pages at issue were part of an electronic
communication dated April 2, 2010 that was sent from FBI Special Agents to the CRM
for the purpose of communicating the FBI"s thoughts about closing a portion of the
investigation concerning Tom DeLay and other individuals. Def.’s Second Mem. 13.
The pages outline details regarding the allegations and investigation, and they contain the
FBl’s summary of the DO`J’s preliminary decision not to prosecute certain subjects of the
investigation. `Def.’s Second Mem. 13-14. Defendant argues this material was properly
withheld pursuant to Exemption 5 for two reasons. First, defendant argues the material is
intra-agency, pre-decisional, and reflects the give-and-take of the Department’s decision-
making process as to whether to prosecute certain individuals and therefore is protected
by the deliberative process privilege. _ Def.’s Second l\l/Iem. 12-14 (citing, inter alia,
Coczsl'czl States Gas Corp. v. Dep’t of Energy, 617 F.Zd 854_, 866 (D.C. Cir. 1980)).
Defendant next argues the material is protected by attorney-client privilege because the
pages contain both an exchange of confidential information between Department
attorneys and their client, the FBI, and a confidential communication reflecting legal
analysis and advice as to whether and why the FBI should close the investigation of
certain individuals, including Mr. DeLay. Def.’s Second Me1n. 15-16 (citing, inter alz'a,
Judz'cial Watch, Inc. v. Dep’t of Homelana’ Sec., 926 F. Supp. 2d l2l, 146 (D.D.C.
2013)).
Plaintiff does not respond to defendant’s argument that the material falls within the
ambit of Exemption 5, and the Court therefore treats that argument as conceded. See
Wz`lkins v. Jackson, 750 F. Supp. 2d 160, 162 (D.D.C. 2()10) ("It is well established that if
a plaintiff fails to respond to an argument raised in a motion for summary judgment, it is
proper to treat that argument as conceded."). Instead, plaintiff claims "the agency is
foreclosed from asserting Exemption 5 as a basis for withholding responsive
information" because it evinced this argument "for the first time" in its present l\/Iotion
for Sum1nary Judgment. `Pl.’s Second Mem. 7. U`nder the law of our Circuit, "the
government ordinarily must raise all its claims of exemption in the original proceedings
in district court, and may not thereafter assert new claims of exemption, either on appeal
or on remand following appeal." Wash. Posl C0. v. Dep’l' ofHealt/'z and Human Servs.,
795 F.2d 205, 208 (D.C. Cir. 1986); see also Maya’ak v. Dep’t ofJusz‘ice, 218 F.3d 760,
764 (D.C. Cir. 20()0) ("We have plainly and repeatedly told the government that, as a
general rule, it must assert all exemptions at the same time, in the original district court
proceedings.").
As an initial matter, defendant responds that it did assert Exemption 5 in the original
proceedings, in its August 2011 motion for summary judgment_, which invokes
Exemption 5 as to the CRM’s prosecution memoranda. Def.’s Opp’n to Pl.’s Cross-Mot.
for Partial Su1n1n. J. and Reply to Pl.’s Partial Opp’n to Def.’s Mot. for Summ. J. ("Def.’s
Reply") 12-14 [Dl795 F. Supp. 2d 43, 61 (D.D.C. 2011). Unfortunately, defendant did not
do so here. The Department employed a decentralized process in which "the decision to
release or withhold i.nformation [was] left to the component where those records
originated." Fowlkes v. ATF, 67 F. Supp. 3d 29(), 296 n.2 (D.D.C. 2()14). The CRl\/l and
the FBI each conducted searches of their respective records and separately provided
individualized reasons for withholding responsive records in the component’s possession.
See generally Ellis Decl.; Hardy Decl. I. In the initial round of summary judgment,
defendant made crystal clear that it asserted Exemption 5 only as a basis for withholding
the CRl\/l’s records. Def`s First Mem. 35 a'$ levi r’ W"`t`hh`-élii
fn 'i.`l`g$¢. E.S.;em- 'l";i§)i- 5_"). Nowhere did defendant claim the FBI had also
properly withheld records pursuant to Exemption 5, nor could it, as the FBI did not
attempt to justify non-disclosure of any of its responsive records by asserting
Exemption 5. See Hardy Decl. I ll 43. Moreover, defendant’s reliance on Exemption 5 in
the initial round extended only to the CRM’s prosecution memoranda related to the
investigation. Def.’s First Me1n. 35-38. At that time, the FBI’s affiant clearly stated he
had "been advised that the [FBI’s] case files do not contain prosecution memoranda, as it
is the policy of DOJ not to provide these memoranda to FBI [Special Agents] due to their
work-product nature." Hardy Decl. l at 19 n.l3. After plaintiff disclaimed any issues as
to the CRl\/I’s response, the parties’ only disputes were to records in the FBI’s possession.
Because it was not even hinted at in the first round o.f summary judgment, the issue of
whether Exemption 5 is applicable to the FBI’S material was not one plaintiff had the
chance to contest or this Court had the opportunity to consider and therefore was not
asserted in the original district court proceedings.
The inquiry does not end here, however, because our Circuit has avoided a "rigid
‘press it at the threshold, or lose it for all times’ approach to . . . agenc[ies’] FOIA
exemption claims" as "the harms of disclosure may in some cases outweigh its ben'efits."
August v. FBI, 328 F.3d 697, 699 (D.C. Cir. 2003) (alterations in orginal) (quoting Senate
of the Conz)nonwealth ofPuerto Rico v. Dep’t ofJustz`ce, 823 F.2d 574, 581 (D.C. Cir.
1987)). Instead, an agency may be permitted to assert FOIA exemptions it did not raise
in the initial district court proceedings under certain circumstances, most notably where
(l) it was "forced to invoke an exemption for the first time on appeal because of a
substantial change in the factual context of the case or because of an interim development
in applicable legal doctrine," z`a’. (quoting Jora’an v. Dep’l of Jastz`ce, 591 F.2d 753, 780
(D.C. Cir. 1978)); (2) "where, through pure mistake, the Government attorneys had not
invoked the correct exemption in the district court" as to high value material that very
likely “was intended to be protected by one of the nine enumerated exemptions," z`a’.
(quoting Jora’an, 591 F.2d at 780); and (3) where strict enforcement of the waiver rule
would not advance the policy interests underlying it, Stonehill v. ]RS., 558 F.3d 534, 53"9
(D.C. Cir. 20()9); see also Reliant Energy Power Generatz'on, ]nc. v. F_ERC, 520 F. Supp.
2d 194, 202 (D.D.C. 2007).
Defendant’s briefing contains no claim of changed factual or legal circumstances,
no mea culpa or acknowledgement or mistake, and indeed no explanation at all as to its
l0