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. 10-1810 (ABJ)
)
U.S. DEPARTMENT OF JUSTICE, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
This lawsuit involves two requests under the Freedom of Information Act (“FOIA”),
5 U.S.C. § 552 (2011), made by plaintiff Citizens for Responsibility and Ethics in Washington
(“CREW”), seeking documents related to media requests to interview former lobbyist Jack
Abramoff while he was in the custody of the Bureau of Prisons. CREW seeks a declaratory
judgment that DOJ has violated FOIA by failing to fulfill CREW’s request for records and an
injunction compelling DOJ to comply with the FOIA requests. Am. Compl. ¶ 2. The parties
have cross-moved for summary judgment [Dkt. # 10 and 11]. For the reasons below, the Court
will grant DOJ’s motion for summary judgment and will deny CREW’s cross-motion for partial
summary judgment.
I. Background
Plaintiff CREW is a nonprofit corporation “committed to protecting the rights of citizens
to be informed about the activities of government officials and to ensuring the integrity of
government officials.” Am. Compl. ¶ 4. Using government records available under FOIA,
CREW aims to “empower citizens to have an influential voice in government decisions and in
the governmental decision making process.” Id. DOJ’s Criminal Division and its component,
the Bureau of Prisons (“BOP”), have possession and control of the records requested by plaintiff.
Id. ¶ 8.
A. CREW’s First FOIA Request
CREW made two separate but related FOIA requests that gave rise to this action. On
May 5, 2010, CREW submitted its first request to the BOP seeking:
(1) “all records of communications between the [BOP] and Alex Gibney, Zena
Barakat, and/or Jigsaw Productions, either initiated or received by the BOP, that
refer, mention or pertain in any way to Jack Abramoff;”
(2) “records of all communications between Abbe Lowell in his capacity as
counsel for Mr. Abramoff and the BOP, either initiated or received by the BOP;”
(3) “any records regarding Mr. Abramoff’s potential involvement, participation,
or cooperation in any movies, books, magazines, newspapers, or television
productions.”
Ex. A to Baumgartel Decl.
The BOP conducted an initial search for documents on July 28 and 29, 2010, and a
second search on or around November 1, 2010. Id. ¶ 7–8. 1 On December 16, 2010, the BOP
1 Initially, William Baumgartel, a senior paralegal specialist for the BOP, determined that
the requested records were totally exempt under Exemptions 6 and 7(C) of FOIA because they
implicated the privacy interests of third parties and Mr. Abramoff. Baumgartel Decl. ¶ 7. As a
result, he determined that the BOP would not perform a search for responsive records. Id.Despite Baumgartel’s determination, his supervisor later directed him to instruct two BOP
offices that were likely to have responsive records to conduct a search. Id. When these offices
found no responsive documents, Baumgartel issued a “total denial” letter to CREW that the
records were exempted from release. Ex. B to Baumgartel Decl. On August 5, 2010, CREW
appealed the denial, which DOJ denied on September 28, 2010. Ex. C and Ex. D to Baumgartel
Decl. The denial letter incorrectly stated that the BOP “did not conduct a search for the
requested records.” Ex. D to Baumgartel Decl. Another letter was sent on December 15, 2010,
clarifying that the BOP had “conducted a preliminary search prior to responding to [CREW’s]
request.” Ex. E to Baumgartel Decl.
2
released thirty-seven pages of responsive documents to CREW. Id. ¶ 11. “Seven of those pages
were redacted in their entirety” and the remaining thirty pages were redacted in part. Id. 2 DOJ
asserted that the redacted materials were exempt from disclosure under FOIA Exemptions 6 and
7(C). Id. Under FOIA, Exemption 6 exempts from mandatory disclosure “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) exempts information
compiled for law enforcement purposes if the disclosure “could reasonably be expected to
constitute an unwarranted invasion of personal privacy.” Id. § 552(b)(7)(C).
According to defendant, the seven pages of documents that were redacted in their entirety
fall into three groups: (1) “three pages from a National Crime Information Center (“NCIC”)
form,” 3 (2) “three pages of communications between inmate Abramoff’s attorney and the [BOP]
to arrange for attorney-client meetings or calls,” and (3) one page that would “indicate whether
or not inmate Abramoff agreed to or declined a request for an interview by a third-party.”
Baumgartel Decl. ¶ 13.
After learning that CREW had filed this lawsuit to compel production of the records, the
BOP officials decided to conduct a search for responsive records at the Federal Correctional
Institution in Cumberland, Maryland, where Mr. Abramoff was incarcerated, as well as in his
central file. Baumgartel Decl. ¶ 10.
2 As an initial matter, CREW does not challenge the withholding of the following
categories of materials: (1) the BOP’s Category 4 – The Names and Contact Information of the
BOP Law Enforcement Personnel; (2) the BOP’s Category 1 - three pages of NCIC forms; (3)
the Criminal Division’s Category B – DOJ attorney’s email address and number; and (4) the
Criminal Division’s Category D – the name and email address of an FBI Special Agent. Pl.’s
Cross Mot. for Summ. J. (“Pl.’s Cross-Mot”) at 3 n.1. Plaintiff does not make any arguments
challenging the withheld documents under FBI Categories (b)(2)-1, (b)(6)-1, and (b)(7)(C)-1, so
the Court will not address these documents.
3 “NCIC is a nationwide computerized information system established to provide an
electronic index of documented criminal justice information to all local, state, and federal
criminal justice agencies.” Baumgartel Decl. ¶ 13. Plaintiff does not challenge the withholding
of the pages from the NCIC form. Pl.’s Cross-Mot. at 3 n.1.
3
On January 25, 2011, the BOP determined it had omitted three additional pages of
responsive documents in its initial release and produced these additional pages to CREW.
Baumgartel Decl. ¶ 16–17. At this time, the BOP also reconsidered its previous redactions and
decided to remove redactions from ten documents. Id. ¶ 17.
B. CREW’s Second FOIA Request
CREW submitted its second FOIA request to DOJ’s Criminal Division on May 6, 2010,
asking for:
[A]ll records of the Criminal Division including, but not limited to, records of the
Public Integrity Section that reflect, refer to, or discuss the request of Mr. Alex
Gibney, Zena Barakat, Jigsaw Productions, or anyone associated with Jigsaw
Productions to interview Mr. Jack Abramoff [and] . . . all records regarding Mr.
Abramoff’s potential involvement, participation, or cooperation in any movies,
books, magazines, newspapers, or television productions.
Attach. 1 to Ellis Decl. CREW’s request stated it sought the records because they may disclose
whether the Criminal Division prevented Abramoff from speaking with any individual associated
with Jigsaw Productions in the making of a documentary or other members of the media. Id.
The Criminal Division conducted a search for documents and released a total of thirty-five email
messages to CREW, ten of which were released in full and twenty-five of which were partially
redacted. Ellis Decl. ¶¶ 15–16. 4 The partially redacted emails withheld information based on
FOIA Exemptions 6 and 7(C). Id. ¶ 18.
4 The Criminal Division also located several email messages originating from the FBI and
one originating from the BOP, which were referred to those agencies for processing. Ellis. Decl.
¶ 27. The BOP released that two-page document with one of the pages partially redacted.
Baumgartel Decl. ¶¶ 14–15. The FBI processed seven pages of email messages that were
referred by the Criminal Division and released the documents to CREW on December 13, 2010.
Hardy Decl. ¶ 6. Three pages were released in full and four pages were released with partial
redactions. Id. ¶ 6.
4
Plaintiff filed this action seeking to compel disclosure of certain of the requested
documents on October 26, 2010. An amended complaint [Dkt. # 3] was filed on November 11,
2010. DOJ filed a motion for summary judgment [Dkt. # 10] on February 23, 2011, and CREW
cross-moved for partial summary judgment [Dkt. # 11] on March 28, 2011. Pursuant to the
Court’s order, DOJ delivered the documents at issue to chambers on September 28, 2011 for in
camera inspection to assist the Court in making a responsible de novo determination. See Ray v.
Turner, 587 F.2d 1187, 1995 (D.C. Cir. 1978).
II. Standard of Review
“FOIA cases are typically and appropriately decided on motions for summary judgment.”
Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009). In the FOIA context, “the sufficiency of
the agency’s identification or retrieval procedure” must be “genuinely in issue” in order for
summary judgment to be inappropriate. Weisberg v. DOJ, 627 F.2d 365, 370 (D.C. Cir. 1980),
quoting Founding Church of Scientology v. NSA, 610 F.2d 824, 836 (D.C. Cir. 1979) (internal
quotation marks omitted). However, plaintiff “cannot rebut the good faith presumption”
afforded to an agency’s supporting affidavits “through purely speculative claims about the
existence and discoverability of other documents.” Brown v. DOJ, 742 F. Supp. 2d 126, 130
(D.D.C. 2010), quoting Defenders of Wildlife v. U.S. Dep’t of Interior, 314 F. Supp. 2d 1, 8
(D.D.C. 2004) (citation and internal quotation marks omitted).
In any motion for summary judgment, the Court “must view the evidence in the light
most favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew
making credibility determinations or weighing the evidence.” Montgomery v. Chao, 546 F.3d
703, 706 (D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 48
(1986). However, where a plaintiff has not provided evidence that an agency acted in bad faith,
5
“a court may award summary judgment solely on the basis of information provided by the
agency in declarations.” Moore, 601 F. Supp. 2d at 12. The district court reviews the agency’s
action de novo, and “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B);
accord Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).
III. Analysis
A. FOIA Actions
The purpose of FOIA is to require the release of government records upon request and 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.” NLRB v. Robbins
Tire & Rubber Co., 437 U.S. 214, 242 (1978). At the same time, Congress recognized “that
legitimate governmental and private interests could be harmed by the release of certain types of
information and provided nine specific exemptions under which disclosure could be refused.”
FBI v. Abramson, 456 U.S. 615, 621 (1982); see also Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d
918, 925 (D.C. Cir. 2003) (“FOIA represents a balance struck by Congress between the public’s
right to know and the government’s legitimate interest in keeping certain information
confidential.”) The Supreme Court has instructed that FOIA exemptions are to be “narrowly
construed.” Abramson, 456 U.S. at 630.
To prevail in a FOIA action, an agency must satisfy two elements. First, the agency must
demonstrate that it has made “a good faith effort to conduct a search for the requested records,
using methods which can be reasonably expected to produce the information requested.”
Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “[A]t the summary judgment
phase, an agency must set forth sufficient information in its affidavits for a court to determine if
the search was adequate.” Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885,
6
890 (D.C. Cir. 1995), citing Oglesby, 920 F.2d at 68. Such agency affidavits attesting to a
reasonable search “are afforded a presumption of good faith,” Defenders of Wildlife, 314 F.
Supp. 2d at 8 and “can be rebutted only ‘with evidence that the agency’s search was not made in
good faith,’” id., quoting Trans Union LLC v. Fed. Trade Comm’n, 141 F. Supp. 2d 62, 69
(D.D.C. 2001). Second, an agency must show that “materials that are withheld . . . fall within a
FOIA statutory exemption.” Leadership Conference on Rights v. Gonzales, 404 F. Supp. 2d 246,
252 (D.C. Cir. 2005).
B. Whether BOP and the Criminal Division Conducted Adequate Searches
CREW first argues that the searches performed by the BOP and the Criminal Division
were not adequate. Pl.’s Cross-Mot. at 4. “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. U.S. 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). “To meet its burden,
the agency may submit affidavits or declarations that explain in reasonable detail the scope and
method of the agency’s search.” Defenders of Wildlife, U.S. Border Patrol, 623 F. Supp. 2d 83,
91 (D.D.C. 2009). However, “the 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. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984). The process of
conducting an adequate search for documents requires “both systemic and case-specific exercises
of discretion and administrative judgment and expertise” and is “hardly an area in which the
courts should attempt to micromanage the executive branch.” Schrecker v. DOJ, 349 F.3d 657,
662 (D.C. Cir. 2003) (internal quotation marks and citations omitted).
7
1. The BOP’s Search Was Adequate
In support of the adequacy of the searches, DOJ submitted a 15-page affidavit from
William Baumgartel, a senior paralegal specialist for BOP. Baumgartel Decl. ¶ 1. In this role,
Baumgartel is responsible for handling FOIA requests submitted to BOP by performing the
search for responsive records and determining which records should be redacted, withheld, or
disclosed. Id. ¶ 2. Baumgartel’s declaration outlines the steps BOP took in response to CREW’s
request. He states that BOP directed the two offices that were most likely to have responsive
records – the Public Information Office and the Legislative Affairs Office – to search their files.
Id. ¶ 18. Because these offices indicated that responsive records were most likely to be found in
Abramoff’s Central File, the BOP also conducted a search of that file. Id. ¶¶ 19–20. An
inmate’s Central File contains information related to all aspects of an inmate’s incarceration,
including media requests. Id. Staff from the prison facility sent Baumgartel forty-six pages of
responsive documents from the Central File, and Baumgartel determined that seventeen of those
pages were not relevant to the request. Id. ¶ 21. Baumgartel then personally reviewed
Abramahoff’s entire Central file, which consists of approximately 1,000 pages, for the following
search terms derived from the request: (1) Alex Gibney; (2) Zena Barakat; (3) Jigsaw
Productions; and (4) Abbe Lowell. Id. ¶ 22. Baumgartel’s review of the file produced an
additional eight pages of documents. Id. Finally, the Public Information Office was asked to
conduct another search for responsive records, which resulted in three additional pages of
documents. Id. ¶ 23. Because in the absence of contrary evidence, agency declarations are given
a presumption of good faith and are generally sufficient to demonstrate an agency’s compliance
with its obligations under FOIA, Perry, 684 F.2d at 127, the Court is persuaded that the BOP
conducted an adequate search that was “reasonably calculated to uncover all relevant
8
documents.’” Valencia–Lucena, 180 F.3d at 325 (internal quotation marks omitted and citations
omitted).
2. The Criminal Division’s Search Was Adequate
DOJ submitted an affidavit from Kristin L. Ellis, a trial attorney in the DOJ Criminal
Division responsible for reviewing FOIA requests. Ellis. Decl. ¶ 1. After receiving clarification
from CREW regarding the time period for the requests, the Criminal Division searched the
Central Criminal Division Index File, which “is a system of records consisting of indices of
names and associated records.” Id. ¶ 10. Because the index file generally would not include
information such as media requests, no responsive records were found. Id. The Criminal
Division also sent search requests to the Public Integrity Section and the Fraud Section – the
offices that handled the Abramoff case – asking the attorneys who were staffed on the case to
search their files and emails for any responsive records. Id. ¶ 11. The declaration, which the
Court presumes to be made in good faith, demonstrates that the search was directed at the people
and offices most likely to have responsive information. Thus, the steps taken by the Criminal
Division took were reasonably calculated to uncover all relevant documents, and the search was
adequate.
C. Whether the BOP, Criminal Division, and the FBI Properly Withheld Records or
Portions of Records Under the FOIA Exemptions
The Court next will examine whether the responsive records that were not produced were
properly withheld under the applicable FOIA exemptions. When an agency declines to produce
a requested document, it bears the burden of justifying the decision to withhold records under
FOIA’s statutory exemptions. See 5 U.S.C. § 552(a)(4)(B). A court may grant summary
judgment based solely on information provided in an agency’s affidavits or declarations if they
“describe the documents and the justifications for nondisclosure with reasonably specific detail,
9
demonstrate that the information withheld logically falls within the claimed exemption, and are
not controverted by either the contrary evidence in the record nor by evidence of agency bad
faith.” Casey, 656 F.2d at 738. 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 and citations omitted).
1. Documents Redacted Under Exemptions 6 and 7(C)
CREW argues that Defendant improperly redacted material under Exemptions 6 and
7(C). 5 Because the Court finds that the records were correctly redacted under Exemption 6, it
need not examine the latter. Smith v. Dep’t of Labor, No. 10-1253 (JEB), 2011 WL 3099703, at
*5 (D.D.C. July 26, 2011). 6 Exemption 6 allows withholding of “personnel and medical files
and similar files” the disclosure of which “would constitute a clearly unwarranted invasion of
5 DOJ made one redaction under Exemption 7(F), in addition to Exemptions 6 and 7(C).
Exemption 7(F) protects disclosure of information compiled for law enforcement purposes where
release of such information “could reasonably be expected to endanger the life or physical safety
of any individual.” 5 U.S.C. § 552(b)(7)(f). The Court does not reach the question of whether
the document was properly withheld under Exemption 7(F) because it finds that it was correctly
withheld under Exemption 6.
6 If the withholdings were proper under Exemption 6, they would also be proper under
Exemption 7(C), which has been construed by the Supreme Court to be broader than Exemption
6. DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756 (1989). (“Exemption
7(C)’s privacy language is broader than the comparable language in Exemption 6 in two
respects. First, whereas Exemption 6 requires that the invasion of privacy be ‘clearly
unwarranted,’ the adverb ‘clearly is omitted from Exemption 7(C) . . . . [And,] whereas
Exemption 6 refers to disclosures that ‘would constitute’ an invasion of privacy, Exemption 7(C)
encompasses any disclosure that ‘could reasonably be expected to constitute’ such an invasion
. . . . Thus, the standard for evaluating a threatened invasion of privacy interests resulting from
the disclosure of records compiled for law enforcement purposes is somewhat broader than the
standard applicable to personnel, medical, and similar files.”)
10
personal privacy.” 5 U.S.C. § 552(b)(6). 7 The primary purpose of Exemption 6 is “to protect
individuals from the injury and embarrassment that can result from the unnecessary disclosure of
personal information.” U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 599 (1982). Such a
determination is made by “weigh[ing] the privacy interest in non-disclosure against the public
interest in the release of records in order to determine whether, on balance, the disclosure would
work a clearly unwarranted invasion of personal privacy.” Lepelletier v. FDIC, 164 F.3d 37, 46
(D.C. Cir. 1999) (internal quotation marks omitted and citation omitted).
The first step in the balancing test under both Exemptions 6 and 7(C) is to determine
whether there is an individual privacy interest in the material withheld. National Ass’n of
Retired Fed Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989). The Supreme Court has
recognized that “the concept of personal privacy . . . is not some limited or ‘cramped notion.’”
Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 165 (2004), quoting Reporters
Comm., 489 U.S. at 763. Rather, “privacy encompass[es] the individual’s control of information
concerning his or her person.” Reporters Comm., 489 U.S. at 763. FOIA’s privacy exemptions
were “intended to cover detailed Government records on an individual which can be identified as
applying to that individual.” Wash. Post Co., 456 U.S. at 602 (internal quotation marks omitted
and citation omitted). Information need not be intimate or embarrassing to qualify for
Exemption 6 protection. Horowitz v. Peace Corps, 428 F.3d 271, 279 (D.C. Cir. 2005).
Generally, personal identifying information such as a person’s name, address, phone number,
date of birth, criminal history, medical history, and social security number may be protected
under Exemption 6. Wash. Post Co., 456 U.S. at 600; Horner, 879 F.2d at 875; Taitz v. Obama,
754 F. Supp. 2d 57, 60 (D.D.C. 2010).
7 The parties do not contest that the documents at issue in this case meet the “similar files”
requirement of Exemption 6.
11
Here, DOJ asserts that the individuals who sought to interview Mr. Abramoff in prison
and Mr. Abramoff himself have a privacy interest at stake in the disclosure of the responsive
documents. 8 DOJ claims that “the release of this information would associate the individuals
with Mr. Abramoff and the criminal investigation related to him[] and could subject them to
unwarranted attention, harassment, or embarrassment.” Def.’s Mem. at 17. DOJ also submits
that much of the redacted information is personal in nature, including dates of birth and social
security numbers that prison visitors are required to provide. Def.’s Reply at 19. With respect to
the request for information about compensation for a movie, DOJ argues that both the individual
who made the offer and Mr. Abramoff himself have a privacy interest because responsive
material would reveal personal financial information. Def.’s Mem. at 20.
Neither party has pointed to case law that directly addresses the factual scenario before
the Court, or that answers the question of whether third parties such as the journalists and
filmmakers who attempted to interview Mr. Abramoff have a protectable privacy interest. 9 It is
true that these individuals sought to interview Mr. Abramoff in their professional capacities.
And, the fact that some of the people who may be identified in the documents have spoken
publicly about their attempts to secure interviews or film deals with Mr. Abramoff reduces the
8 This analysis applies to the documents defendant characterizes as: (1) the Criminal
Division’s Categories A and C – Names of Individuals Who Sought to or Actually Did Visit
and/or Interview Mr. Abramoff while He Was in Prison, (2) the Criminal Division’s Category E
– Information About Compensation for a Movie; (3) the BOP’s Category 1 – Names, Contact
Information, and Other Information of Individuals Who Sought to or Actually Did Visit and/or
Interview Mr. Abramoff While He Was in Prison; (4) the BOP’s Categories 2 and 3 –
Information Regarding Mr. Abramoff’s Participation in Interview and Communications With His
Attorney; (5) the FBI’s Category (b)(6)-2/7(C)(2) – Name and Identifying Information of Third
Party Merely Mentioned.
9 Mr. Abramoff and his attorney clearly have a privacy interest in their attorney-client
meetings.
12
risk that if the information is released, they would be subjected to unwanted attention or
embarrassment. Ex. B to Pl.’s Cross-Mot. at 3 (director Alex Gibney discussing his attempts to
interview Mr. Abramoff in prison). Moreover, there is nothing in the record that demonstrates
that the individuals who attempted to visit or interview Mr. Abramoff were directly involved in
the criminal investigation, so defendant’s argument on this point is not persuasive.
Instead, the best argument in favor of finding a privacy interest in this situation is that the
D.C. Circuit has broadly construed the privacy interests of third parties under Exemption 6. See
Horowitz, 428 F.3d at 279 (instructing that “[e]ven seemingly innocuous information can be
enough to trigger” the privacy interests of third parties mentioned in government records); Nat’l
Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (finding that “Exemption 6
is designed to protect personal information in public records, even if it is not embarrassing or of
an intimate nature”). 10 In light of these D.C. Circuit precedents and the fact the majority of
redacted information concerns personal identifying information, the Court concludes for the
purposes of the balancing test that there is at least a minimal privacy interest involved in this
case.
The Court next must weigh the public interest in disclosure against the minimal privacy
interest. The Supreme Court has determined that the only relevant public interest under FOIA is
“the citizens’ right to be informed about what their government is up to.” Reporters Comm., 489
U.S. at 773 (internal quotation marks omitted and citation omitted). In determining whether to
disclose a document, a court must weigh “the nature of the requested document and its
10 Although the Court does not reach this ground, it notes that the presumption that names
and identifying information about third parties should be withheld is even stronger under
Exemption 7(C). Ctr. for Nat’l Sec. Studies, 331 F.3d at 946 (finding a “categorical rule” that
third party information in law enforcement records should not be disclosed absent “compelling
evidence that the agency is engaged in illegal activity” and “that information is necessary to
confirm or refute that evidence.”)
13
relationship to the basic purpose of the Freedom of Information Act to open agency action to the
light of public scrutiny.” Id. at 772 (internal quotation marks omitted and citations omitted).
“That purpose, however, is not fostered by disclosure of information about private citizens that is
accumulated in various governmental files but that reveals little or nothing about an agency’s
own conduct.” Id. at 773.
CREW asserts that a strong public interest exists in the requested documents, namely, an
interest in knowing the extent to which the BOP and Criminal Division “sought to prevent Mr.
Abramoff from speaking with members of the media.” Pl.’s Cross-Mot. at 15 (internal quotation
marks and citations omitted). CREW contends that if the government interfered with media
access to Abramoff, it “would raise serious issues of potentially illegal or improper conduct by
DOJ, going to the core of why Congress enacted the FOIA in the first place.” Id. CREW also
claims there is a public interest in knowing the amount of compensation Mr. Abramoff was
offered for media interviews. Id. at 16.
The Court concludes that any public interest asserted by CREW has been satisfied by the
documents and portions of the documents already released and therefore there is no public
interest in the limited redacted or withheld information that would justify its disclosure.
Congress enacted FOIA to allow citizens to know “what their government is up to,” Reporters
Comm., 489 U.S. at 773 (emphasis added), not what Mr. Abramoff or various press outlets are up
to. CREW has been provided with the materials that advance the public interest it identified, i.e.,
those that demonstrate what role, if any, DOJ or the Bureau of Prisons played in permitting or
restricting media access to Mr. Abramoff. CREW now knows when and whether interview
requests were made and how they were resolved. What has been redacted is simply the personal
information identifying who made the requests, which is not a matter that has any bearing on
14
CREW’s stated public purpose. And how much money a private citizen – even a prisoner – was
offered by a private media concern reveals nothing about “what their government is up to.” Id.CREW complains that because there are redactions in the documents, the asserted public
interest has not been achieved. But the Court has reviewed the documents in camera and finds
that any redactions or withheld documents were narrowly tailored in order to remove the names
or other private information about the third parties mentioned in the records. Releasing the
redacted information in this case would reveal nothing about “the agency’s performance of its
statutory duties.” Lepelletier, 164 F.3d at 46, quoting U.S. Dep’t of Defense v. Fed. Labor
Relations Auth., 510 U.S. 487, 497 (1994) (internal quotation marks omitted). Rather, it would
disclose only information about private citizens that would constitute a clearly unwarranted
invasion of personal privacy. As the Supreme Court has explained, “FOIA’s central purpose is
to ensure that the Government’s activities be opened to the sharp eye of public scrutiny, not that
information about private citizens that happens to be in the warehouse of the Government be so
disclosed.” Reporters Comm., 489 U.S. at 744. The information about third parties in this case
simply “happens to be in the warehouse of the Government,” id., and sheds no light on the
government’s performance of its statutory duties. Lepelletier, 164 F.3d at 46. As a result, there
is no public interest in the disclosure of these documents. Balancing a minimal privacy interest
against a nonexistent governmental interest, the D.C. Circuit has held that “something . . .
outweighs nothing every time. Horowitz, 428 F.3d at 278 (internal quotation marks omitted and
citation omitted). The Court concludes that the same is true here. Although the privacy interest
may be minimal, CREW cannot point to any public interest that overcomes even that weak
privacy interest. See Carter v. U.S. Dep’t of Commerce, 830 F.2d 388, 390–91 nn. 8 & 13 (D.C.
15
Cir. 1987) (stating that the requester under FOIA has the burden of demonstrating a valid public
interest).
As the agency’s redactions and withheld documents pursuant to Exemption 6 were valid,
the Court need not consider Exemption 7(C).
CONCLUSION
For the reasons above, the Court will grant DOJ’s motion for summary judgment and will
deny CREW’s cross-motion for partial summary judgment. A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: November 9, 2011
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