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,
v. Civil Action No. 11-1021 (JEB)
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendant.
MEMORANDUM OPINION
Plaintiff Citizens for Responsibility and Ethics in Washington brought this action under
the Freedom of Information Act, 5 U.S.C. § 552, seeking records related to an investigation by
the Department of Justice into allegations of bribery and conflicts of interest involving former
Congressman Jerry Lewis (R-CA). After this Court rejected DOJ’s attempt to categorically
exclude virtually all of the materials sought from disclosure, Defendant released over two
thousand documents, at least in part. DOJ also withheld several thousand more under various
FOIA exemptions, and the parties have now cross-moved for summary judgment on the validity
of these exemptions. Although DOJ’s time-consuming efforts here are impressive, the Court is
constrained to conclude that FOIA requires more. Because the Department has failed to provide
sufficient documentation for the Court to be able to evaluate each of its exemption claims, the
Court denies Defendant’s Motion, grants Plaintiff’s Cross-Motion in part, and directs DOJ to
produce additional explanations as described below.
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I. Background
On January 24, 2011, Plaintiff submitted identical FOIA requests to the Federal Bureau
of Investigation, the Criminal Division of the United States Department of Justice (CRM), and
the Executive Office for United States Attorneys (EOUSA). See Def. Mot., Exh. 6 (Statement of
Material Facts (SUMF)), ¶ 1. Plaintiff sought “all records related to the investigation of Rep.
Jerry Lewis (R-CA) conducted by DOJ and the Federal Bureau of Investigation (‘FBI’) that are
not covered by grand jury secrecy pursuant to Rule 6(e) of the Federal Rules of Criminal
Procedure, including but not limited to DOJ’s decision not to bring criminal charges against
him.” Id., ¶ 2. Both CRM and EOUSA denied Plaintiff’s initial requests for various reasons,
and CREW brought suit in this Court on June 2, 2011, prior to receiving a decision from DOJ’s
Office of Information Policy on its pending administrative appeals. Id., ¶¶ 3-7.
The parties cross-moved for summary judgment in late 2011 on the issue of whether DOJ
could categorically withhold all responsive documents pursuant to FOIA Exemptions 6 and 7(C).
In March 2012, this Court denied Defendant’s motion and granted partial summary judgment to
Plaintiff, ordering CRM and EOUSA to continue processing responsive records, release non-
exempt portions thereof, and produce a Vaughn Index describing the withheld information. See
Citizens for Responsibility and Ethics in Washington v. U.S. Dep’t of Justice (CREW I), 846 F.
Supp. 2d 63, 75-76 (D.D.C. 2012). In response to this Court’s Order, CRM produced 166 pages
of non-exempt, responsive records, along with a Vaughn Index describing the thirty-nine
additional documents withheld pursuant to FOIA Exemptions 5, 6, and 7(C). See SUMF, ¶¶ 11-
13; see also Def. Mot., Exh. 1 (Declaration of John E. Cunningham III), Exh. 8 (Criminal
Division Vaughn Index) at 1-6.
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As a result of its initial search, EOUSA identified a universe of some 2.3 million
documents possibly related to Plaintiff’s request. See SUMF, ¶¶ 14-15. After processing and
de-duplication, it identified 95,228 documents, totaling some 1,443,703 pages, that were
potentially responsive. Id., ¶¶ 16-17. It processed these potentially responsive documents on a
rolling basis, eventually determining that there were 6,194 actually responsive documents,
totaling 25,414 pages, all of which it sought to withhold in whole or in part. Id., ¶¶ 20-22.
EOUSA also provided CREW with a Vaughn “Glossary,” which divided the 6,194 documents
withheld in whole or in part into thirteen categories. Id., ¶¶ 22-24, see Def. Mot., Exh. 3 (Second
Declaration of Vinay J. Jolly), Exh. I (EOUSA Vaughn Index) at 1-8. These categories are:
• Category 1: Internal AUSA [Asst. U.S. Attorney]/USAO-CAC
[U.S. Attorney’s Office for the Central District of California]
Communications – 1,633 documents
• Category 2: AUSA/USAO-CAC Communications with the FBI –
522 documents
• Category 3: Google Alerts to USAO-CAC Employees – 2,357
documents
• Category 4: AUSA/USAO-CAC Communications with CRM
[DOJ’s Criminal Division] – 72 documents
• Category 5: AUSA/USAO-CAC Communications with the
Department of Defense – 207 documents
• Category 6: Internal AUSA/USAO-CAC Communications with
OIP [Office of Information Privacy] – 16 documents
• Category 7: Internal AUSA/USAO-CAC Communications with the
Office of Legislative Affairs – 13 documents
• Category 8: Internal AUSA/USAO-CAC Communications with the
Office of the General Counsel [at the Executive Office for United
States Attorneys] – 19 documents
• Category 9: AUSA/USAO-CAC Communications with Third
Parties of Investigative Interest or Witnesses – 511 documents
• Category 10: Internal AUSA/USAO-CAC Notes – 74 documents
• Category 11: AUSA Legal and Legislative Research – 49
documents
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• Category 12: AUSA/USAO-CAC Communications with Multiple
Agencies – 294 documents
• Category 13: Miscellaneous Communications and USAO/CAC
Electronic Server Data – 427 documents
See 2d Jolly Decl., ¶¶ 18-32. Almost all of the 2,367 documents released in part to Plaintiff are
confined to Category 3. See EOUSA Vaughn Index at 2. As that category contains only 2,357
documents, the nature of the remaining ten partially released documents remains unclear. These
efforts required more than 1,978 personnel hours. See SUMF, ¶ 21.
EOUSA asserted that the remaining documents were exempt from disclosure pursuant to
FOIA Exemptions 3, 5, 6, and 7(C), “in order to protect attorney work product, privileged, and
third-party privacy protected material, as well as grand jury information intertwined with the
responsive records.” Id., ¶ 25. Defendant then moved for summary judgment, arguing that it
had engaged in a reasonable search for responsive documents and properly withheld records
pursuant to the aforementioned exemptions. See Def. Mot. at 10-27. CREW opposed the
Motion and filed a Cross-Motion for Summary Judgment, conceding the adequacy of the search
but challenging the propriety of the government’s withholdings and the sufficiency of its Vaughn
Indices. See Pl.’s Opp. and Cross-Mot. at 5-22.
II. Legal Standard
Summary judgment may be granted 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
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for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477
U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely
disputed must support the assertion” by “citing to particular parts of materials in the record” or
“showing that the materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
FOIA cases typically and appropriately are decided on motions for summary judgment.
See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a
court may grant summary judgment based solely on information provided in an agency’s
affidavits or declarations when they “describe 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.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)
(citation omitted). 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 1197, 1200 (D.C. Cir. 1991) (internal
quotation marks omitted). “Unlike the review of other agency action that must be upheld if
supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the
burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter
de novo.’” U.S. Dep’t of Justice v. Reporters Comm. for the Freedom of the Press, 489 U.S.
749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).
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III. Analysis
Congress enacted FOIA in order to “pierce the veil of administrative secrecy and to open
agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976) (citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to
the functioning of a democratic society, needed to check against corruption and to hold the
governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146,
152 (1989) (citation omitted). The statute provides that “each 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.
§ 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order
the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(4)(B);
Reporters Comm., 489 U.S. at 755. “Unlike the review of other agency action that must be
upheld if supported by substantial evidence and not arbitrary and capricious, the FOIA expressly
places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine
the matter de novo.’” Reporters Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). “At
all times, courts must bear in mind that FOIA mandates a ‘strong presumption in favor of
disclosure’ . . . .” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002)
(quoting Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)).
After briefly addressing whether DOJ’s search for documents was reasonable and
adequate, the Court will turn to the gravamen of the Motions: whether DOJ appropriately
justified its withholdings under Exemptions 3, 5, 6, and 7(C).
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A. Adequacy of the Search
FOIA requires government agencies to describe their searches in enough detail for a court
to determine whether the search was sufficiently exhaustive to satisfy the Act. Nation Magazine,
Washington Bureau v. U.S. Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995); Oglesby v.
U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “An agency fulfills its obligations under
FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to
uncover all relevant documents.’” Valencia-Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C.
Cir. 1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)); see also
Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). “[T]he issue to be resolved is
not whether there might exist any other documents possibly responsive to the request, but rather
whether the search for those documents was adequate.” Weisberg v. Dep’t of Justice, 745 F.2d
1476, 1485 (D.C. Cir. 1984) (emphasis in original). The adequacy of an agency’s search for
documents requested under FOIA “is judged by a standard of reasonableness and depends, not
surprisingly, upon the facts of each case.” Id. To meet its burden, the agency may submit
affidavits or declarations that explain the scope and method of its search “in reasonable detail.”
Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). Absent contrary evidence, such affidavits or
declarations are sufficient to show that an agency complied with FOIA. See id. “If, however,
the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the
agency is not proper.” Truitt, 897 F.2d at 542.
The parties here do not dispute the adequacy of Defendant’s search for documents:
Plaintiff raises no such challenge, and the Court independently finds that the searches were
adequate. According to John Cunningham, a Trial Attorney in the FOIA/Privacy Act Unit in the
Office of Enforcement Operations at the Criminal Division who was personally involved in the
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search, the Criminal Division searched the Automated Case Tracking System, a comprehensive
database storing records related to investigations, and identified records related to Plaintiff’s
request. See Cunningham Decl., ¶¶ 1, 5, 9. The United States Attorney’s Office for the Central
District of California also completed a system-wide search for responsive records, seeking
records relating to the Lewis investigation from all current and former USAO-CAC employees
assigned to the matter, electronic mail and servers, all paper records, and both on-site and off-site
file storage locations, using Lewis’s first and last name, and the code-name for the investigation.
See 2d Jolly Decl., ¶ 15. These efforts were “reasonably calculated to uncover all relevant
documents.” Truitt, 897 F.2d at 542. The Court thus finds that the searches conducted by both
components – EOUSA and CRM – were adequate.
B. Propriety of Defendant’s Withholdings
FOIA provides that “each 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. § 552(a)(3)(A). Nine categories of
information are exempt from FOIA’s broad rules of disclosure. 5 U.S.C. § 552(b)(1)-(9). These
exemptions are to be narrowly construed, see Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976), and the reviewing court must bear in mind that FOIA mandates a “strong presumption in
favor of disclosure.” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991); Nat’l Ass’n of Home
Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002). This Court, accordingly, can compel the
release of any records that do not satisfy the requirements of at least one exemption. See
Reporters Comm., 489 U.S. at 755.
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1. Overall Sufficiency of Documentation and Explanations
FOIA was drafted with the objective of affording the public maximum access to most
government records. See Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). The
government, as a result, bears the burden of demonstrating that at least one exemption applies.
See id. In order to assist a court in its de novo review of the withholdings and to allow the party
seeking access to documents to engage in effective advocacy, the government must furnish
“detailed and specific information demonstrating ‘that material withheld is logically within the
domain of the exemption claimed.’” Campbell, 164 F.3d at 30 (quoting King v. U.S. Dep’t of
Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)). This allows for “as full a public record as possible,
concerning the nature of the documents and the justification for nondisclosure.” Hayden v. Nat’l
Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1384 (D.C. Cir. 1979). Courts in this Circuit have
stressed that the government cannot justify its withholdings on the basis of summary statements
that merely reiterate legal standards or offer “far-ranging category definitions for information.”
King, 830 F.2d at 221; see, e.g., Campbell, 164 F.3d at 30 (emphasizing that an agency’s
explanations will not suffice if they “‘are conclusory, merely recit[e] statutory standards, or if
they are too vague or sweeping’”) (quoting Hayden, 608 F.2d at 1387).
While FOIA’s individual exemptions impose their own tailored evidentiary burden, as a
starting point, the government must meet five overarching requirements for each withholding.
See King, 830 F.2d at 224. The government must:
(1) [I]dentify the document, by type and location in the body of
documents requested; (2) note that [a particular exemption] is
claimed; (3) describe the document withheld or any redacted
portion thereof, disclosing as much information as possible without
thwarting the exemption’s purpose; (4) explain how this material
falls within one or more of the categories . . . ; and [if the
exemption requires a showing of harm] (5) explain how disclosure
9
of the material in question would cause the requisite degree of
harm.
Id.In circumstances where an in-depth description of a withholding would risk disclosure of
sensitive information, and particularly where a confidential source might be compromised, the
government may supplement its explanations with non-public affidavits and other documents for
in camera review by the court. See Simon v. Dep’t of Justice, 980 F.2d 782, 784 (D.C. Cir.
1992) (“in camera review . . . is the best way to assure both that the agency is entitled to the
exemption it claims and that the confidential source is protected”). In camera review, however,
is “not a substitute for the government’s obligation to provide detailed public indexes and
justifications whenever possible.” Lykins v. U.S. Dep’t of Justice, 725 F.2d 1455, 1463 (D.C.
Cir. 1984); see also PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 253 (D.C. Cir. 1998) (“[I]n
camera review is generally disfavored,” and is “not a substitute for the government’s obligation
to justify its withholding in publicly available and debatable documents.”) (internal citations
omitted).
The Vaughn Index requirement, however, is not as rigid as it might seem at first blush.
The D.C. Circuit has noted that “context dictates [a court’s] approach to the particularity required
of agencies,” Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 147 (D.C. Cir. 2006),
going so far as to say that in certain circumstances,
abstraction can aid court review when drawing from specific
examples. We have never required repetitive, detailed
explanations for each piece of withheld information – that is, codes
and categories may be sufficiently particularized to carry the
agency’s burden of proof. Especially where the agency has
disclosed and withheld a large number of documents,
categorization and repetition provide efficient vehicles by which a
court can review withholdings that implicate the same exemption
for similar reasons.
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Id. This flexibility, however, is layered on a background presumption going back several
decades that document-by-document explanations of withheld information are required. See,
e.g., King, 830 F.2d at 224 (“Vaughn’s call for specificity imposes on the agency the burden of
demonstrating applicability of the exemptions invoked as to each document or segment withheld.
Elsewhere we have defined the Vaughn index as ‘consist[ing] of one document that adequately
describes each withheld record or deletion and sets forth the exemption claimed and why that
exemption is relevant. Categorical description of redacted material coupled with categorical
indication of anticipated consequences of disclosure is clearly inadequate.”) (quoting Palsley v.
CIA, 712 F.2d 686, 689 (D.C. Cir. 1983), vacated in part, 724 F.2d 201 (D.C. Cir. 1984))
(emphasis deleted; alteration in original). This Circuit’s cases seem to hint at the idea of a
sliding scale inversely correlating the number of withheld documents and the level of detail
required to justify their withholding. That said, they also make clear that an agency is only
permitted to provide an alternative to the document-by-document Vaughn Index where doing so
would provide the Court and the requester with an equally strong basis for evaluating the
agency’s exemption claims in detail.
For example, if the government chooses to submit a short Vaughn Index containing
abbreviated descriptions, it must supplement the index with detailed affidavits that do more than
merely repeat the same generalized categorization of content. See Judicial Watch, Inc. v. FDA,
449 F.3d 141, 146 (D.C. Cir. 2006); see also Coastal States Gas Corp. v. Dep’t of Energy, 617
F.2d 854, 861 (D.C. Cir. 1980) (index identifying “who wrote the memorandum, to whom it was
addressed, its date, and a brief description of the memorandum,” accompanied by affidavits
drafted in “conclusory terms” deemed insufficient). While the government need not furnish
repetitive descriptions of the same type of document and may describe commonalities among its
11
withholdings, it must avoid resorting to explanation in generalities. See Judicial Watch, 449
F.3d at 147. The “grouping” of documents in the Vaughn Index may be permissible in certain
circumstances, particularly when the withholdings comprise multiple, duplicative records and
when the government’s supporting affidavits are “sufficiently detailed to allow the district court
fairly to evaluate” the application of a claimed exemption to distinct categories of documents.
See Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994); see also Landmark Legal Found. v.
Internal Revenue Service, 267 F.3d 1132, 1138 (D.C. Cir. 2001) (“It is not the agency’s fault that
thousands of documents belonged in the same category, thus leading to exhaustive repetition.”).
In certain cases, agencies have been permitted to produce a Vaughn Index discussing a
representative sample of the withheld documents. “Representative sampling is an appropriate
procedure to test an agency’s FOIA exemption claims when a large number of documents are
involved.” Bonner v. Dep’t of State, 928 F.2d 1148, 1151 (D.C. Cir. 1991); see also U.S. Dep’t
of Justice, Guide to the Freedom of Information Act at 782-83 (2009 ed.). Sampling transforms
“a voluminous FOIA exemption case [into] a manageable number of items that can be evaluated
individually through a Vaughn Index,” yet a well-chosen sample can still be extrapolated from
“with some confidence.” Bonner, 928 F.2d at 1151. For example, in Bonner, the sample
included 63 of the 1,033 partially withheld documents. See id. at 1149. In Meeropol v. Meese,
790 F.2d 942 (D.C. Cir. 1986), the sample contained 1% of the 20,000 totally or substantially
withheld documents, and none of the partially withheld documents. See id. at 948, 956-57. In
Weisberg, the court eventually sampled 93 documents. See 745 F.2d at 1490. Sampling,
however, “will yield satisfactory results only if the sample employed is sufficiently
representative, and if the documents in the sample are treated in a consistent manner.” Bonner,
928 F.2d at 1151. Agencies using sampling to comply with FOIA have been cautioned to
12
provide “an explanation of how the documents were selected, in order to ensure that the
documents in the index were truly representative.” Shannahan v. Internal Revenue Service, 672
F.3d 1142, 1151 (9th Cir. 2012). The Court need not further discuss sampling since the
government here has not sought this recourse.
Whatever the form, however, the substance of the government’s submissions must meet a
consistent standard. As the D.C. Circuit has long held, “[C]onclusory assertions of privilege will
not suffice to carry the agency’s burden.” Senate of the Com. of Puerto Rico v. U.S. Dep’t of
Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) (citing Coastal States, 617 F.2d at 861; Mead Data
Cent. v. United States Dep't of the Air Force, 566 F.2d 242, 258 (D.C. Cir. 1977)). To that end,
while the D.C. Circuit did not “endeavor an encompassing definition of ‘conclusory assertion,’”
it found that “for present purposes, it is enough to observe that where no factual support is
provided for an essential element of the claimed privilege or shield, the label ‘conclusory’ is
surely apt.” Senate of the Com. of Puerto Rico, 823 F.2d at 585 (emphasis in original).
The Vaughn Index and declaration submitted by EOUSA fall well short of this standard,
often simply because of the vast quantities of documents for which Defendant offers only one
short paragraph of justification. See, e.g., EOUSA Vaughn Index at 2. DOJ provides no
authority to show that submission of a “categorical” Vaughn Index, even with a supporting
affidavit, is either a customary or acceptable means of discharging its evidentiary burden.
Indeed, consistent precedent demonstrates that the contrary is true. As the Vaughn Court itself
cautioned: “[I]t is unreasonable to expect a trial judge to do as thorough a job of illumination and
characterization as would a party” who is familiar with the documents and who seeks to withhold
them. Vaughn, 484 F.2d at 825. Likewise, Defendant cannot show that EOUSA’s submissions
here have provided enough detail for both Plaintiff and judicial review, see id., where it seeks to
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withhold thousands of documents on so scant a record. The Vaughn Index filed by EOUSA does
not offer a useable point of reference to negotiate these thousands of pages of withholdings, a
problem that is discussed in further detail in relation to each claimed FOIA exemption.
This Court, consequently, holds that EOUSA’s Vaughn Index and explanations of the
withholdings are insufficient as a whole. On these grounds alone, the Court must deny the
Motion for Summary Judgment as to those documents withheld by EOUSA. If EOUSA does not
produce the contested records, it must submit revised documentation that is sufficiently detailed
and comprehensive to meet the evidentiary standards set out in King, 830 F.2d at 224, as well as
the exemption-specific standards, which are discussed in detail in the sections that follow.
As the D.C. Circuit has noted, FOIA’s evidentiary burden is likely to create significant
costs for government agencies as they respond to requests, but “[t]he costs must be borne . . . if
the congressional policy embodied in FOIA is to be well served.” Senate of the Com. of Puerto
Rico, 823 F.2d at 587. The Court must follow this Circuit’s law on FOIA, although this is the
type of case that Congress might wish to bear in mind when debating whether to further extend
that statute. Here, the government has spent nearly 2,000 personnel hours – and will spend
another significant amount of time responding to this Opinion – because one public-advocacy
group was interested in a closed criminal investigation. At a time of sequestration and further
budget cuts, it may be worth considering how much of the government’s time should be spent in
chasing down thousands of documents and then formulating detailed justifications about their
withholding. The Court is loath to pile additional responsibility on DOJ, but finds its hands are
tied: despite the Department’s extensive and laudable efforts, it has yet to comply with FOIA’s
statutory requirements.
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2. Applicability of Specific Exemptions
Plaintiff’s challenges to specific withholdings turn principally on the applicability of
FOIA Exemptions 5, 6, 7(C), and 3. See Pl.’s Opp. and Cross-Mot. at 8-22. The Court will
consider them in sequence.
a. Exemption 5
FOIA Exemption 5 applies to “inter-agency or intra-agency memorandums or letters
which would not be available by law to a party other than an agency in litigation with the
agency.” 5 U.S.C. § 552(b)(5). Withholdings are restricted to “those documents, and only those
documents, normally privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co.,
421 U.S. 132, 149 (1975); see also United States v. Weber Aircraft Corp., 465 U.S. 792, 798-99
(1984). In contrast to disclosures in that context, the needs of a particular plaintiff are irrelevant
to a court’s determination of whether a particular communication is exempt from disclosure
under Exemption 5. Martin v. Office of Special Counsel, Merit Sys. Prot. Bd., 819 F.2d 1181,
1184 (D.C. Cir. 1987) (citing Sears, Roebuck, 421 U.S. at 149).
Exemption 5 encompasses three distinct components relevant here – namely, the
deliberative-process privilege (sometimes referred to as “executive privilege”), the attorney
work-product privilege, and the attorney-client privilege. Am. Immigration Council v. U.S.
Dep’t of Homeland Sec., 905 F. Supp. 2d 206, 216 (D.D.C. 2012). In addition to meeting the
distinct evidentiary burden for each relevant privilege of this exemption, the government must
demonstrate that its withholdings satisfy the threshold requirement of “inter-agency or intra-
agency memorandums.” 5 U.S.C. § 552(b)(5). As there is no dispute on this requirement, the
Court can move to each of the three privileges.
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i. Deliberative-Process Privilege
The deliberative-process privilege of Exemption 5 “calls for disclosure of all opinions
and interpretations which embody the agency’s effective law and policy,” while “withholding []
all papers which reflect the agency’s group thinking in the process of working out its policy and
determining what its law shall be.” Sears, Roebuck, 421 U.S. at 153 (internal quotations
omitted). In order to justify a withholding under this privilege, the government must prove two
basic elements. First, it must demonstrate that the document qualifies as “pre-decisional” in the
sense that it was “[a]ntecedent to the adoption of an agency policy.” Jordan v. U.S. Dep’t of
Justice, 591 F.2d 753, 774 (D.C. Cir. 1978) (en banc), partially overruled on other grounds by
Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1053 (D.C. Cir. 1981).
Second, the government must show that the document is “deliberative,” in that it forms “a direct
part of the deliberative process in that it makes recommendations or expresses opinions on legal
or policy matters.” Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975) (Vaughn II); see
also Pub. Citizen, Inc. v. Office of Mgmt. and Budget, 598 F.3d 865, 876 (D.C. Cir. 2009)
(explaining that “[a] document that does nothing more than explain an existing policy cannot be
considered deliberative”).
Over the years, courts in this Circuit have developed a substantial body of precedent to
guide the government in formulating descriptions of its deliberative-process withholdings. A
court’s decision on the applicability of this privilege fundamentally “depend[s] upon the
individual document and the role it plays in the administrative process.” Coastal States, 617 F.2d
at 867. The government, accordingly, bears the burden of situating the document within that
process and must provide detailed information on the “nature of the decisionmaking authority
vested in the office or person issuing the disputed document,” Taxation with Representation
16
Fund v. Internal Revenue Service, 646 F.2d 666, 678 (D.C. Cir. 1981), as well as the “relative
positions in the agency’s ‘chain of command’ occupied by the document’s author and recipient.”
Senate of the Com. of Puerto Rico, 823 F.2d at 586 (quoting Arthur Andersen & Co. v. Internal
Revenue Service, 679 F.2d 254, 258 (D.C. Cir. 1982)). Indeed, in order to discharge its burden,
the government must specifically “establish[] what deliberative process is involved, and the role
played by the documents in issue in the course of that process.” Coastal States, 617 F.2d at 868
(citing Vaughn II, 523 F.2d at 1146).
Here, the submissions by CRM and EOUSA diverge slightly. CRM’s Vaughn Index
describes the 39 documents it seeks to withhold on a document-by-document basis, identifying
the title or description of the document, its author and recipient if known, the date (if known),
and references to the specific FOIA exemptions at issue (including separating those Exemption 5
withholdings covered by the deliberative-process privilege and the work-product privilege). See
CRM Vaughn Index. The accompanying declaration provides additional detail about the specific
reason each document or, in two cases, each small group of documents qualifies for one or more
FOIA Exemptions. For example, regarding Document 25, Cunningham avers:
This ten-page document dated July 17, 2008, is a memorandum
over-viewing the investigation of Representative Lewis. . . .
Document Twenty-[five] is being withheld under FOIA Exemption
5 as attorney work product, containing a summary of facts and
evidence related to an ongoing investigation as well as the
attorney’s legal analysis. Multiple pages of this document also
contain the handwritten notes of the receiving PIN Trial Attorney,
and reflect a give-and-take commentary and analysis of the
ongoing investigation. The document is being withheld under
Exemption 5’s deliberative process privilege, as it reveals
recommendations, comments, and investigatory choices that
informed the ultimate decision whether to prosecute
Representative Lewis and others.
17
See Cunningham Decl., ¶ 28. While this level of detail is superior to that provided by EOUSA,
it still falls short of FOIA’s requirements, as it does not identify “the role played by the
documents in issue in the course of [the deliberative] process” of deciding whether or not to
indict Rep. Lewis. Coastal States, 617 F.2d at 868. The Court, therefore, is unable to determine
the propriety of CRM’s deliberative-process withholdings.
EOUSA’s submissions, by contrast, are far thinner. Its scant affidavit, which includes a
mere paragraph explaining why nearly 4,000 documents are being withheld pursuant to the
deliberative-process privilege, offers only circular justifications for the withholdings that parrot
back the relevant standards. See 2d Jolly Decl., ¶ 40. The declaration avers only that “the
documents are deliberative in nature because they discuss investigation strategies and analyze
potential criminal claims or other legal issues,” and that “to disclose the information provide
[sic] would reveal pre-decisional communications among government personnel such as
discussion of various legal issues, alternatives, and strategies.” Id. The declaration makes no
reference whatsoever to required elements of the deliberative-process privilege, including the
dates the documents were created, see Hussain v. U.S. Dep’t of Homeland Sec., 674 F. Supp. 2d
260, 270 (D.D.C. 2009), the relative positions in the chain of command of the author and
recipient, see Senate of the Com. of Puerto Rico, 823 F.2d at 586, the deliberative process
involved, the role played by the documents in that process, see Coastal States, 617 F.2d at 868,
and the nature of the author’s decisionmaking authority. See Taxation with Representation
Fund, 646 F.2d at 679. Without at least some of this information, the Court is simply unable to
pass on EOUSA’s deliberative-process claims at this juncture.
It may very well be that many of the redacted documents qualify for the protections of
Exemption 5 for reasons of deliberative process. Indeed, the D.C. Circuit has observed that “the
18
process leading to a decision to initiate, or to forego, prosecution is squarely within the scope of
this privilege; . . . ‘Exemption [5] is tailor-made for the situation in which [a prosecutor’s office
is] assessing the evidence it [is] compiling. To expose this process to public scrutiny would
unnecessarily inhibit the prosecutor in the exercise of his traditionally broad discretion to assess
the case and decide whether or not to file charges.’” Senate of the Com. of Puerto Rico, 823
F.2d at 585 n.38 (quoting Fund for Constitutional Government v. Nat’l Archives & Records
Service, 485 F. Supp. 1, 13 (D.D.C. 1987)). Likewise, past cases have found that the
deliberative-process privilege often exempts the disclosure of documents that resemble a number
of those that CRM and EOUSA have submitted. See Judicial Watch, Inc. v. U.S. Dep’t of
Homeland Sec., 880 F. Supp. 2d 105, 111-12 (D.D.C. 2012) (email exchanges discussing draft
responses to press inquiries); Exxon Corp. v. Dep’t of Energy, 585 F. Supp. 690, 698 (D.D.C.
1983) (documents marked as “draft”). This Court, however, is not at liberty to draw such
conclusions based on mere inference and guesswork. As other courts in this District have
emphasized: “Mere classification of a document as a ‘draft document’ does not end the inquiry;
the government must also prove that the document is pre-decisional and related to a deliberative
process.” Techserve Alliance v. Napolitano, 803 F. Supp. 2d 16, 27 (D.D.C. 2011) (citing
Coastal States, 617 F.2d at 866). Given the current state of Defendant’s documentation, the
Court cannot agree that its withholdings are proper under the deliberative-process prong of
Exemption 5.
ii. Attorney Work-Product Privilege
The attorney work-product prong of Exemption 5 extends to “documents and tangible
things that are prepared in anticipation of litigation or for trial” by an attorney. Fed. R. Civ. P.
26(b)(3)(A). As this Court has noted in the past, the work-product privilege is relatively broad,
19
encompassing documents prepared for litigation that is “foreseeable,” if not necessarily
imminent. See Am. Immigration Council, 905 F. Supp. 2d at 221. The privilege is not endless,
however:
While it may be true that the prospect of future litigation touches
virtually any object of a [law-enforcement agency] attorney’s
attention, if the agency were allowed “to withhold any document
prepared by any person in the Government with a law degree
simply because litigation might someday occur, the policies of the
FOIA would be largely defeated.”
Senate of the Com. of Puerto Rico, 823 F.2d at 586-87 (quoting Coastal States, 617 F.2d at 865).
When reviewing a withholding under the work-product prong, the “‘testing question’ . . . is
‘whether, in light of the nature of the document and the factual situation in the particular case,
the document can fairly be said to have been prepared or obtained because of the prospect of
litigation.’” In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) (quoting Senate of the Com.
of Puerto Rico, 823 F.2d at 586 n.42) (emphasis added).
At a minimum, the government must demonstrate that the lawyer who prepared the
document possessed the “subjective belief that litigation was a real possibility, and that belief
must have been objectively reasonable.” In re Sealed Case, 146 F.3d at 884. It follows that, in
order for the government to discharge its evidentiary burden, it must 1) provide a description of
the nature and contents of the withheld document, 2) identify the document’s author or origin (by
job title or otherwise), 3) note the circumstances that surround the document’s creation,
including the date the document was created, and 4) provide some indication of the type of
litigation for which the document’s use is at least foreseeable.
DOJ’s withholdings under the work-product prong of Exemption 5 suffer the same
infirmities identified for its deliberative-process withholdings. Here, again, Defendant’s
purported justifications fail to provide the Court with sufficient information to evaluate its
20
attorney work-product claims. EOUSA seeks to withhold nearly 4,000 documents under this
privilege, but fails to provide any information regarding the dates of creation or the authors or
recipients of any of the documents. See Wilderness Soc’y v. U.S. Dept. of Interior, 344 F. Supp.
2d 1, 18 (D.D.C. 2004) (where “documents withheld under the work-product privilege [do not]
indicate their author or recipient, [the court] has no context in which to assess whether the
attorney work-product privilege protects the documents from disclosure”). Likewise, the
Criminal Division fails to provide any information regarding its work-product claims beyond the
bare assertion that “documents one and four through thirty-six are records that reflect the sorting
and assembling of factual information, as well as legal analyses and recommendations of DOJ
attorneys about whether to prosecute Representative Lewis and other third parties. These
documents were gathered as part of an investigation of specific wrongdoing during which the
government was attempting to build a case against suspected wrongdoers.” See Cunningham
Decl., ¶ 16. While CRM once again makes a more promising start than its counterpart EOUSA,
its assertions still fall short: they are still missing the kind of document-by-document information
regarding the dates of creation, the authors and recipients, and some more detailed description of
the documents’ contents required by the work-product privilege.
While the Court recognizes that the government must walk a fine line between under- and
over-disclosure, the work-product prong of Exemption 5 requires that agencies make a good-
faith effort to describe the nature of each individual document and the particular circumstances
that make its use in litigation foreseeable. See In re Sealed Case, 146 F.3d at 884; Senate of the
Com. of Puerto Rico, 823 F.2d at 586 n.42. Without such information, the Court cannot
distinguish true work-product documents from those that happen to have been penned by
someone with a law degree.
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iii. Attorney-Client Privilege
Exemption 5 also extends to attorney-client privileged documents – namely, confidential
communications from clients to their attorneys, as well as communications from attorneys to
their clients containing confidential information supplied by the client. See Tax Analysts v.
Internal Revenue Service, 117 F.3d 607, 618 (D.C. Cir. 1997). 1 As with the other prongs of
Exemption 5, it falls to the government to prove, through “detailed and specific information,”
that the withheld information falls within the domain of the attorney-client privilege. See
Campbell, 164 F.3d at 30. In order to prevail on a motion for summary judgment in this area, the
government must substantiate five essential elements in its supporting documentation:
(1) [T]he holder of the privilege is, or sought to be, a client; (2) the
person to whom the communication is made is a member of the bar
or his subordinate and, in connection with the communication at
issue, is acting in his or her capacity as a lawyer; (3) the
communication relates to a fact of which the attorney was informed
by his client, outside the presence of strangers, for the purpose of
securing legal advice; and (4) the privilege has been claimed by the
client. Additionally, [(5)] a “fundamental prerequisite to the
assertion of the privilege” is “confidentiality both at the time of the
communication and maintained since.”
Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 841 F. Supp. 2d 142, 153-54 (D.D.C. 2012)
(citing In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984); Coastal States, 617 F.2d at 863);
accord Fed. Trade Comm’n v. GlaxoSmithKline, 294 F.3d 141, 146 (D.C. Cir. 2002).
“In the governmental context, the ‘client’ may be the agency and the attorney may be an
agency lawyer.” Tax Analysts, 117 F.3d at 618. Where an agency lawyer serves in a mixed
capacity that involves responsibilities both within and “outside the lawyer’s sphere,” however,
1
While Defendant asserts that Plaintiff has waived its objection to the documents withheld under the
attorney-client privilege because it failed to address the issue in its Opposition and Cross-Motion, see Def. Rep. at
12 n.4, Plaintiff disagrees, arguing that because it objects to the sufficiency of the government’s submissions as a
whole, it has preserved its objection to each individual exemption claim. See Pl. Rep. at 7 n.3. The Court finds the
issue moot, as it has found Defendant’s submissions insufficient as a whole. See Section III.B.1, supra.
22
the agency employee’s communications will only be protected to the extent that they involve his
or her professional, legal capacity. In re Sealed Case, 737 F.2d at 99.
As with the other prongs of Exemption 5, the Court simply cannot issue summary
judgment on the record assembled here. Defendant provides, once again, one paragraph of
justification for its attorney-client withholdings (which include only those records in Category
8), saying that “[t]he records in Category 8 contain also consist [sic] of attorney-client privileged
communications regarding possible AUSA conflicts of interests [sic]. These documents consist
of confidential opinions and advice rendered by the Office of the General Counsel, EOUSA, to
its client, the USAO-CAC.” See 2d Jolly Decl., ¶ 39. This brief justification fails to provide the
Court with much of the information required to substantiate an attorney-client privilege claim. It
tends to establish that the holder of the privilege is a client and hints at the idea that the topic of
discussion (conflicts of interest) was legal in nature, that “the person to whom the
communication is made is a member of the bar . . . and, in connection with the communication at
issue, is acting in his or her capacity as a lawyer,” and that the privilege is claimed by the
purported client. It does not, however, reveal – for example – whether “the communication
relates to a fact of which the attorney was informed by his client, outside the presence of
strangers, for the purpose of securing legal advice.” See Judicial Watch, 841 F. Supp. 2d at 153-
54. As a result, the Court cannot grant summary judgment to the Defendant on the basis of its
attorney-client privilege claims.
b. Exemptions 6 and 7(C)
EOUSA attempts to withhold many of the documents in this case, at least in part, under
Exemptions 6 and 7(C). Exemption 6 protects “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5
23
U.S.C. § 552(b)(6). Exemption 7(C) excludes “records of 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). Both provisions require agencies and reviewing courts to “balance
the privacy interests that would be compromised by disclosure against the public interest in the
release of the requested information.” Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir.
1993) (quoting Davis v. Dep’t of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992)).
Although both exemptions require agencies and reviewing courts to undertake the same
weighing of interests, the balance tilts more strongly toward nondisclosure in the context of
Exemption 7(C) because “Exemption 7(C)’s privacy language is broader than the comparable
language in Exemption 6 in two respects.” Reporters Comm., 489 U.S. at 756. First, Exemption
6 encompasses “clearly unwarranted” invasions of privacy, while Exemption 7(C) omits the
adverb “clearly.” See id. Second, Exemption 6 prevents disclosures that “would constitute” an
invasion of privacy, while Exemption 7(C) targets disclosures that “could reasonably be
expected to constitute” such an invasion. See id. Both differences are the result of specific
amendments, reflecting Congress’s conscious choice to provide greater protection to law-
enforcement materials than to personnel, medical, and other similar files. See id. As a result,
courts have held that Exemption 7(C) “establishes a lower bar for withholding material [than
Exemption 6],” ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011); see also Beck v.
Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993). The Court, accordingly, need only
address whether DOJ has properly withheld these documents under Exemption 7(C).
At an earlier stage in this proceeding, Plaintiff conceded that the records at issue were
prepared for law-enforcement purposes, and so Exemption 7(C) applied. See CREW I, 846 F.
24Supp. 2d at 71. The sole question before the Court at that stage was whether DOJ properly
balanced those competing interests when it categorically refused to provide the records CREW
requested. Cf. ACLU, 655 F.3d at 6. In answering that question, this Court found:
“In this case, however, appellants have identified a public interest
cognizable under FOIA in disclosure,” Nation Magazine, 71 F.3d
at 895, and a significant one at that. Where, as here, there are
significant interests on both sides of the scale, discerning whether
the balance favors privacy with respect to a set of documents the
contents of which remain unidentified becomes more difficult.
The weights of those interests, furthermore, may vary with respect
to each document within the responsive file. Determining whether
withholding is justified, therefore, requires a more nuanced
analysis than can be undertaken without an account of the records
in the Government’s possession. The Court is simply not able to
come to a conclusion as to the balance between the privacy and
public interests at this level of generality.
CREW I, 846 F. Supp. 2d at 75-76. Now, Defendant argues an almost identical position to that
which it argued earlier in this case, asserting that there was “no legitimate public interest in the
release of personal, non-public information concerning an individual who may have been a
suspect . . . or subject of investigative interest in a possible federal investigation,” see 2d Jolly
Decl., ¶ 47, and that “the privacy interests of these individuals in protecting their names and
identifying information from disclosure outweighed any public interest in disclosure.” See
Cunningham Decl., ¶ 33.
Plaintiffs argue that the agency is barred from taking this position by the “law-of-the-
case” doctrine. See Pl.’s Opp. and Cross-Mot. at 21 (citing Crocker v. Piedmont Aviation, 49
F.3d 735, 739 (D.C. Cir. 1995)). The Court need not go so far. Instead, it finds that as with
Defendant’s withholdings under Exemptions 5 and 3, the documents and portions of documents
withheld under Exemptions 6 and 7(C) may well be exempt from disclosure, but that the
government has yet to provide Plaintiff and this Court with sufficient information to come to
25
such a conclusion. Hewing to the same guidance provided earlier in this Opinion with regard to
sampling, categorization, and other alternative means of meeting the Vaughn Index requirement,
the Court repeats that the government must provide additional information regarding its
Exemption 6 and 7(C) withholdings so as to allow the Court to determine how “[t]he weight of
those interests . . . may vary with respect to each document within the responsive file.” CREW I,
846 F. Supp. 2d at 75-76. As Plaintiff does not challenge the government’s withholding of the
names and identifying information of law-enforcement officials and other government attorneys,
or third parties other than Rep. Lewis, see Pl.’s Opp. and Cross-Mot. at 20, Defendant need only
provide such supporting documentation where it seeks to withhold information concerning Rep.
Lewis himself.
c. Exemption 3
EOUSA seeks to withhold some 3,818 documents under Exemption 3, which covers
records “specifically exempted from disclosure by statute . . . [provided that such statute either]
(A)(i) requires that the matters be withheld from the public in such a manner as to leave no
discretion on the issue; or (A)(ii) establishes particular criteria for withholding or refers to
particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). The relevant statute here –
Federal Rule of Criminal Procedure 6(e) – bars the disclosure of matters occurring before a
grand jury. See Fed. R. Crim. P. 6(e)(2)(B). Because it was affirmatively enacted by Congress,
Rule 6(e) is recognized as a “statute” for Exemption 3 purposes. See Fund for Constitutional
Gov’t. v. Nat'l Archives & Records Serv., 656 F.2d 856, 867 (D.C. Cir. 1981). The Rule’s
grand-jury-secrecy requirement is applied broadly and embraces any information that “tend[s] to
reveal some secret aspect of the grand jury's investigation, [including] the identities of witnesses
or jurors, the substance of testimony, the strategy or direction of the investigation, the
26
deliberations or questions of jurors, and the like.” Lopez v. Dep’t. of Justice, 393 F.3d 1345,
1349 (D.C. Cir. 2005) (internal quotation marks omitted). In the absence of a statutory exception
to the general presumption of grand jury secrecy, Rule 6 is “quite clear that disclosure of matters
occurring before the grand jury is the exception and not the rule,” and “the rule's ban on
disclosure is for FOIA purposes absolute and falls within . . . Exemption 3.” Fund for
Constitutional Gov't., 656 F.2d at 868.
In support of its withholdings under Exemption 3, the Department again offers limited
justification, saying only that “EOUSA has invoked Exemption 3 . . . to withhold information
revealing the names of grand jury targets, witnesses, and individuals assisting in the grand jury
investigation, and information that may reveal the scope and direction of a grand jury proceeding
pursuant to Exemption 3, F.R.Cr.P 6(e),” and referring back to documents in “Categories 1-2, 4-
7, 9-13.” See 2d Jolly Decl., ¶ 35. Those categories include nearly 4,000 documents. While,
once again, it is entirely possible that all the documents at issue here can be withheld under
Exemption 3, the Court is unable to make such a determination on the record currently before it.
As Plaintiff correctly notes, “Rule 6(e) does not cover all information developed during the
course of a grand jury investigation, but only information that would reveal . . . [what] actually
occurred before the grand jury.” In re Complaint Against Circuit Judge Richard D. Cudahy, 294
F.3d 947, 951 (7th Cir. 2002). Once again, this is a fact-intensive, document-specific inquiry.
Because the Court is unable to resolve this issue at the altitude Defendant seems to desire, it will
again deny Defendant’s Motion for Summary Judgment and grant Plaintiff’s Cross-Motion with
respect to the Exemption 3 withholdings.
27
3. Segregable Material
At present, the Court need not address Plaintiff’s claim that Defendant has failed to
release all reasonably segregable information from its withholdings. To aid in the preparation of
Defendant’s further explanations of the withholdings, the Court wishes to make explicit this
Circuit’s precedent on segregability of non-exempt information. While the government is
“entitled to a presumption that [it] complied with the obligation to disclose reasonably
segregable material,” Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013), this presumption of
compliance does not obviate the government’s obligation to carry its evidentiary burden and
fully explain its decisions on segregability. See Mead Data, 566 F.2d at 261. Once EOUSA and
CRM have specifically identified the exempted portions of their records and described them in
accordance with the requirements set out above, see Sections III.B.2.a-b, supra, they must also
provide descriptions of excerpts deemed to be non-segregable, with explanations as to these
decisions. See Mead Data, 566 F.2d at 261.
As to segregability, CRM merely asserts that “following a line-by-line review, all
reasonably segregable, non-exempt information has been released in full or in part to the
plaintiff. The documents withheld in their entirety contain no meaningful portion that could be
released without destroying the integrity of the document or without disclosing third-party
interests.” See Cunningham Decl., ¶ 34. For its part, EOUSA contends only that “[e]ach
document was evaluated to determine if any information could be segregated and released.
EOUSA has segregated and released in full the non-exempt responsive records to Plaintiff. All
of the remaining records fall within one or more of the exemptions set forth above and are not
segregable without revealing this protected information.” See 2d Jolly Decl., ¶ 51. Neither will
suffice to discharge this burden. As the D.C. Circuit stressed in Mead Data, “[U]nless the
28
segregability provision of the FOIA is to be nothing more than a precatory precept, agencies
must be required to provide the reasons behind their conclusions in order that they may be
challenged by FOIA plaintiffs and reviewed by the courts.” 566 F.2d at 261. The Court trusts
that Defendant will follow this guidance.
IV. Conclusion
For the forgoing reasons, the Court will deny Defendant’s Motion for Summary
Judgment and grant Plaintiff’s Cross-Motion in part and deny it in part. If DOJ does not produce
the requested documents, it must provide full explanations of its withholdings under all relevant
FOIA Exemptions for any records and redacted portions not made available to Plaintiff. An
Order consistent with this Opinion shall issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: July 25, 2013
29