Citizens for Responsibility and Ethics in Washington

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY
AND ETHICS IN WASHINGTON,
Plaintiff,
v.
No. 20-0212 (EGS)
U.S. DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION
I. Introduction
Plaintiff Citizens for Responsibility and Ethics in
Washington (“CREW”) has sued Defendant U.S. Department of
Justice (“DOJ”) under the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552, and the Declaratory Judgment Act, 28 U.S.C. §§
2201 and 2202. See Compl., ECF No. 1 ¶ 1.1 CREW challenges DOJ’s
decision to withhold responsive records—specifically, three
spreadsheets of information—pursuant to various FOIA exemptions.
See id.Pending before the Court are DOJ’s Motion for Summary
Judgment, see Def.’s Mot. Summ. J., ECF No. 16; and CREW’s
1 When citing electronic filings throughout this Opinion, the
Court refers to the ECF page numbers, not the page numbers of
the filed documents.
1
Motion for Partial Summary Judgment, see Pl.’s Cross-Mot.
Partial Summ. J., ECF No. 18. Upon careful consideration of the
motions, the oppositions, and replies thereto, the applicable
law, and the entire record herein, the Court hereby GRANTS DOJ’s
Motion for Summary Judgment and DENIES CREW’s Motion for Partial
Summary Judgment.
II. Background
A. Factual
In a letter dated June 10, 2019, DOJ disclosed to Congress
that it was examining certain activities involving the campaigns
in the 2016 U.S. presidential election and other related matters
(the “Review”). Def.’s Reply Counter-Statement of Material Facts
to Which There is No Genuine Issue (“SOMF”), ECF No. 21-1 ¶ 1.
The letter confirmed that U.S. Attorney General William P. Barr
(“Attorney General Barr”) had directed U.S. Attorney for the
District of Connecticut John H. Durham (“U.S. Attorney Durham”)
to lead this Review, which was funded out of the U.S. Attorneys
Salaries and Expenses appropriation. Id. ¶¶ 2-3.
CREW submitted two FOIA requests to learn more about the
resources DOJ was expending on the Review. See id. ¶¶ 4-5. CREW
submitted its first request to DOJ’s Office of Information
Policy (“OIP”) on November 19, 2019. Id. ¶ 4. Through this FOIA
request, CREW sought disclosure of “documents sufficient to show
the detailed cost breakdowns for trips as they relate to John H.
2
Durham’s review relating to the origins of the government’s
investigation into interference in the 2016 election.” Id.(quoting Ex. A, ECF No. 16-7 at 1).
CREW submitted a second FOIA request—this time to DOJ’s
Executive Office for United States Attorneys (“EOUSA”) and to
OIP on December 5, 2019. Id. ¶ 5. In its letter, CREW requested
“copies of all records of budgets, expenses, salaries, and costs
of the investigation being conducted by United States Attorney
John H. Durham.” Id. (quoting Ex. B, ECF No. 16-8 at 1). Soon
thereafter, EOUSA and OIP acknowledged receipt of CREW’s FOIA
requests. See id. ¶¶ 6-7.
On May 22, 2020, OIP sent CREW two letters responding to
the FOIA requests. Id. ¶ 14. OIP stated that it would withhold
in full all records responsive to CREW’s two FOIA requests. Id.
¶ 15. OIP’s responsive records consist of two spreadsheets. Id.
¶ 20. The first spreadsheet lists the names, salaries, and home
offices of members of the Review. Id. ¶ 21. The second
spreadsheet identifies travel information: the identity of the
official(s) making the trip, the duration of the trip, the
destination, and a particularized breakdown of the total cost of
each trip (transportation, lodging, and meals and incidental
expenses). Id. ¶ 22. OIP claimed that it may withhold these two
spreadsheets in full pursuant to FOIA Exemption 7(A) and that it
3
may withhold certain information in the records pursuant to FOIA
Exemptions 6 and 7(C). Id. ¶ 15.
On July 1, 2020, EOUSA provided CREW with a letter stating
its final determination. Id. ¶ 16. EOUSA stated that it would
withhold in full its responsive record: one spreadsheet with two
tabs. Id. ¶ 23. The first tab lists the identities and salaries
of investigators for the Review. Id. The second tab lists
information about the Review’s travel expenses: the identity of
the traveler, the duration of the trip, the destination, and the
total cost of the trip. Id. EOUSA claimed that nondisclosure of
the entire spreadsheet is appropriate pursuant to FOIA Exemption
7(A) and that FOIA Exemptions 5, 6, 7(C), 7(D), and 7(F) protect
certain information from disclosure. Id. ¶ 17.
Both EOUSA and OIP reviewed the information that they
withheld in their responses to CREW, and both concluded that
they would not be able to segregate any information in the
responsive records without revealing protected information. See
id. ¶¶ 18-19.
B. Procedural
On September 11, 2020, DOJ filed its Motion for Summary
Judgment. See Def.’s Mot. Summ. J., ECF No. 16; Mem. P. & A. in
Supp. of Def.’s Mot. Summ. J. (“Def.’s Mot.”), ECF No. 16-1. On
October 16, 2020, CREW filed its opposition and Cross-Motion for
Partial Summary Judgment. See Pl.’s Cross-Mot. Partial Summ. J.,
4
ECF No. 18; Mem. P. & A. in Opp’n to Def.’s Mot. Summ. J. & in
Supp. of Pl.’s Mot. Summ. J. (“Pl.’s Mot.”), ECF No. 18-1. DOJ
filed its opposition to CREW’s motion and reply in support of
its own motion on November 6, 2020, see Def.’s Reply in Supp. of
its Mot. Summ. J. & Opp’n to Pl.’s Cross-Mot. Summ. J. (“Def.’s
Opp’n”), ECF No. 21; and CREW filed its reply on November 20,
2020, see Pl.’s Reply Mem. in Supp. of its Mot. Summ. J. (“Pl.’s
Reply”), ECF No. 23.
The motions are now ripe and ready for adjudication.
III. Legal Standard
A. Summary Judgment
FOIA cases are typically and appropriately decided on
motions for summary judgment. Gold Anti–Tr. Action Comm., Inc.
v. Bd. of Governors of Fed. Rsrv. Sys., 762 F. Supp. 2d 123, 130
(D.D.C. 2011) (citation and internal quotation marks omitted).
Summary judgment is warranted “if the movant shows [by affidavit
or other admissible evidence] 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). A party opposing a
summary judgment motion must show that a genuine factual issue
exists by “(A) citing to particular parts of materials in the
record . . . or (B) showing that the materials cited do not
establish the absence . . . of a genuine dispute.” Fed. R. Civ.
P. 56(c). Any factual assertions in the moving party’s
5
affidavits will be accepted as true unless the opposing party
submits his own affidavits or other documentary evidence
contradicting the assertion. See Neal v. Kelly, 963 F.2d 453,
456 (D.C. Cir. 1992). However, “the inferences to be drawn from
the underlying facts . . . must be viewed in the light most
favorable to the party opposing the motion.” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(citation and internal quotation marks omitted).
An agency has the burden of demonstrating that “each
document that falls within the class requested either has been
produced, is unidentifiable, or is wholly [or partially] exempt
from the Act’s inspection requirements.” Goland v. CIA, 607 F.2d
339, 352 (D.C. Cir. 1978) (citation and internal quotation marks
omitted). In reviewing a summary judgment motion in the FOIA
context, the court must conduct a de novo review of the record,
see 5 U.S.C. § 552(a)(4)(B); but may rely on agency
declarations, see SafeCard Servs. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991). Agency affidavits or declarations that are
“relatively detailed and non-conclusory” are accorded “a
presumption of good faith, which cannot be rebutted by purely
speculative claims about the existence and discoverability of
other documents.” Id. (citation and internal quotation marks
omitted). The Court may award summary judgment solely on the
basis of information provided by the department or agency in
6
declarations when the declarations 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.” Mil. Audit Project v. Casey, 656 F.2d 724, 738 (D.C.
Cir. 1981) (citation and internal quotation marks omitted).
B. FOIA Exemptions
Congress enacted FOIA to “open up the workings of
government to public scrutiny through the disclosure of
government records.” Jud. Watch, Inc. v. U.S. Dep’t of Com., 375
F. Supp. 3d 93, 97 (D.D.C. 2019) (quoting Stern v. FBI, 737 F.2d
84, 88 (D.C. Cir. 1984) (internal quotation marks and
alterations omitted)). Although the legislation is aimed toward
“open[ness] . . . of government,” id.; Congress acknowledged
that “legitimate governmental and private interests could be
harmed by release of certain types of information,” Critical
Mass Energy Project v. Nuclear Regul. Comm’n, 975 F.2d 871, 872
(D.C. Cir. 1992) (citation and internal quotation marks
omitted). As such, pursuant to FOIA’s nine exemptions, an agency
may withhold requested information. 5 U.S.C. § 552(b)(1)-(9).
However, because FOIA established a strong presumption in favor
of disclosure, requested material must be disclosed unless it
falls squarely within one of the exemptions. See Burka v. U.S.
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Dep't of Health & Hum. Servs., 87 F.3d 508, 515 (D.C. Cir.
1996).
The agency bears the burden of justifying any withholding.
See Bigwood v. U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68,
74 (D.D.C. 2007). “Ultimately, an agency’s justification for
invoking a FOIA exemption is sufficient if it appears logical or
plausible.” Jud. Watch, Inc. v. U.S. Dep’t of Def., 715 F.3d
937, 941 (D.C. Cir. 2013) (per curiam) (citation and internal
quotation marks omitted).
IV. Analysis
A. EOUSA and OIP Conducted Reasonably Adequate Searches
DOJ argues that EOUSA and OIP both “‘made a good faith
effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce information
requested.’” Def.’s Mot., ECF No. 16-1 at 11 (quoting Clemente
v. FBI, 867 F.3d 111, 117 (D.C. Cir. 2017) (citation and
internal quotation marks omitted)). CREW does not contest the
adequacy of EOUSA or OIP’s searches. Pl.’s Mot., ECF No. 18-1 at
11 n.1.
Nevertheless, the Court has “an independent duty to
determine whether the agency’s search for responsive records was
adequate.” Tokar v. U.S. Dep’t of Just., 304 F. Supp. 3d 81, 93
(D.D.C. 2018) (citing Winston & Strawn, LLP v. McLean, 843 F.3d
503, 507–08 (D.C. Cir. 2016)). For DOJ to prevail on summary
8
judgment in a FOIA case, “the defending ‘agency must show beyond
material doubt . . . that it has conducted a search reasonably
calculated to uncover all relevant documents.’” Morley v.
C.I.A., 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Weisberg
v. U.S. Dep’t of Just., 705 F.2d 1344, 1351 (D.C. Cir. 1983)).
It “‘must show that it made a good faith effort,’” Reps. Comm.
for Freedom of Press v. Fed. Bureau of Investigation, 877 F.3d
399, 402 (D.C. Cir. 2017) (quoting Oglesby v. U.S. Dep’t of
Army, 920 F.2d 57, 68 (D.C. Cir. 1990)); which it may “establish
. . . by submitting reasonably detailed, nonconclusory
affidavits describing its efforts,” Baker & Hostetler LLP v.
U.S. Dep’t of Com., 473 F.3d 312, 318 (D.C. Cir. 2006).
Here, DOJ has submitted affidavits from Ms. Brinkmann, Mr.
Jolly, and Mr. Larson to describe the searches EOUSA and OIP
conducted in response to CREW’s FOIA request. See Brinkmann
Decl., ECF No. 16-3 ¶¶ 6-16; Jolly Decl., ECF No. 16-4 ¶ 6;
Larson Decl., ECF No. 16-5 ¶¶ 7-8. The Court finds that the
affidavit submitted by Ms. Brinkmann “specif[ies] ‘what records
were searched, by whom, and through what process.’” Rodriguez v.
DOD, 236 F. Supp. 3d 26, 35 (D.D.C. 2017) (quoting Steinberg v.
DOJ, 23 F.3d 548, 552 (D.C. Cir. 1994)); see Brinkmann Decl.,
ECF No. 16-3 ¶¶ 6-16. Further, the affidavit sufficiently
“set[s] forth the search terms and the type of search performed,
and aver[s] that all files likely to contain responsive
9
materials (if such records exist) were searched.” Reps. Comm.,
877 F.3d at 402 (quoting Oglesby, 920 F.2d at 68); see Brinkmann
Decl., ECF No. 16-3 ¶¶ 6-16. This information is sufficient to
satisfy the Court’s inquiry. See Iturralde v. Comptroller of
Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (“[T]he adequacy of
a FOIA search is generally determined not by the fruits of the
search, but by the appropriateness of the methods used to carry
out the search.” (citation omitted)).
DOJ has made its prima facie case, see Reps. Comm., 877
F.3d at 402; and CREW raises no opposition to that showing.
Accordingly, the Court GRANTS Defendant DOJ’s Motion for Summary
Judgment regarding the adequacy of EOUSA and OIP’s searches.
B. FOIA Exemptions
DOJ asserts that EOUSA and OIP properly withheld responsive
records pursuant to various FOIA exemptions. See Def.’s Mot.,
ECF No. 16-1 at 11-20. CREW opposes the application of each FOIA
exemption to withhold travel destinations, dollar amounts of
investigation expenses, and personnel salaries. See Pl.’s Mot.,
ECF No. 18-1 at 12-16.
The records at issue are three spreadsheets. Two contain
the following information: (1) the names and salaries of the
members of the Review and their home office, Def.’s Mot., ECF
No. 16-1 at 11 (citing Brinkmann Decl., ECF No. 16-3 ¶ 17); and
(2) “travel expense information incurred by members of the
10
Review, including the identity of the travelers, the trip’s
duration, the destination and a breakdown of cost associated
with each trip,” id. (citing Brinkmann Decl., ECF No. 16-3 ¶
17). These spreadsheets were withheld in full pursuant to FOIA
Exemption 7(A), and also pursuant to Exemptions 6 and 7(C) for
specific information in them. Id. The third spreadsheet contains
the identities and salaries of investigators from the U.S.
Attorney’s Office for the District of Connecticut, travel and
travel cost information, and witness identifying information.
Id. (citing Larson Decl., ECF No. 16-5 ¶¶ 6-8). This spreadsheet
was withheld in full pursuant to FOIA Exemption 7(A), and also
pursuant to Exemptions 5, 6, 7(C), and 7(F) for specific
information in the document. Id.
1. The Information Contained in the Spreadsheets Was
Compiled for Law Enforcement Purposes
To invoke a subpart of Exemption 7, DOJ must first
demonstrate that the records were “compiled for law enforcement
purposes.” 5 U.S.C. § 552(b)(7). Exemption 7 protects from
disclosure “records or information compiled for law enforcement
purposes,” but only to the extent that disclosure of such
records would cause an enumerated harm. 5 U.S.C. § 552(b)(7);
see FBI v. Abramson, 456 U.S. 615, 622 (1982). In considering
whether records were compiled for law enforcement purposes,
“‘the focus is on how and under what circumstances the requested
11
files were compiled and whether the files sought relate to
anything that can fairly be characterized as an enforcement
proceeding.’” Clemente, 867 F.3d at 119 (quoting Jefferson v.
Dep’t of Just., Off. of Pro. Resp., 284 F.3d 172, 176-77 (D.C.
Cir. 2002)). The agency will meet its threshold requirement by
“establish[ing] a rational nexus between the investigation and
one of the agency’s law enforcement duties and a connection
between an individual or incident and a possible security risk
or violation of federal law.” Blackwell v. FBI, 646 F.3d 37, 40
(D.C. Cir. 2011) (citations and internal quotation marks
omitted).
DOJ claims that it has met this requirement, arguing that
the information in the three spreadsheets is related to the
Review led by U.S. Attorney Durham, whom Attorney General Barr
authorized to conduct the Review and bring any appropriate
criminal charges. See Def.’s Mot., ECF No. 16-1 at 12-13. The
spreadsheets contain the identities and salaries of the members
of the Review and details about their travel and related
expenditures while investigating potential violations of federal
law as well as the identities of witnesses for the Review. See
id. at 12. DOJ asserts that this information has “a direct and
substantial nexus to the ongoing investigation and the
underlying threshold law enforcement purpose.” Def.’s Opp’n, ECF
No. 21 at 3.
12
A record is compiled for law enforcement purposes so long
as there is: (1) a “rational nexus” between the record and the
agency’s law enforcement duties; and (2) a “connection” between
the record and a possible violation of federal law. Blackwell,
646 F.3d at 40. Here, the records satisfy both requirements.
First, there is a rational “nexus” between the records and the
agency’s law enforcement duties. The records contain information
about the salaries, travel and other expenditures, and staffing
details of the members of the Review. Brinkmann Decl., ECF No.
16-3 ¶ 19. The Review needs to track the identities of its
members as well as its travel and other expenses to maintain an
organized investigation. Second, there is a connection between
the records and a possible violation of federal law because the
members of the Review—a law enforcement investigation being
conducted by DOJ—are investigating possible violations of
federal law.
CREW argues that DOJ has not met its initial burden because
the record demonstrates that the spreadsheets were not created
for law enforcement purposes but instead for administrative and
FOIA processing purposes. See Pl.’s Mot., ECF No. 18-1 at 12. As
to the first argument, the cases CREW cites are distinguishable
because in each of those cases, the court concluded that the
connection between the records and whether they had been
compiled for law enforcement purposes was too attenuated for the
13
records to come within the scope of Exemption 7. See Henderson
v. U.S. Dep’t of Just., 157 F. Supp. 3d 42, 49-50 (D.D.C. 2016)
(holding that stenographic expense file had not been compiled
for law enforcement purposes because the only tie to law
enforcement appeared to be “the apparent connection between
stenographic services and the EOUSA’s law enforcement function
in prosecuting plaintiff’s criminal case”); Maydak v. U.S. Dep’t
of Just., 362 F. Supp. 2d 316, 322 (D.D.C. 2005)(holding that
the agency had not shown that a list of staff names and titles
at a particular corrections institution was compiled for law
enforcement purposes when the agency withheld the information
from BOP inmates, but released the names and titles to the
general public), order vacated in part, No. CV 00-0562 (RBW),
2008 WL 11497858 (D.D.C. Dec. 3, 2008); Leadership Conf. on Civ.
Rts. v. Gonzales, 404 F. Supp. 2d 246, 257 (D.D.C. 2005)
(concluding that “there [wa]s no evidence that the paralegal
names and work numbers were compiled for law enforcement
purposes” when “the references to paralegals’ names and work
numbers are made to identify to prosecutors the person to whom
their voting initiative reports and records should be sent to”).
Here, by contrast, DOJ has demonstrated that the records are
directly related to activities in furtherance of the Review.
With regard to CREW’s argument that the records were
compiled for FOIA processing purposes, it is not fatal that DOJ
14
has compiled information it stores elsewhere into spreadsheets
to fulfill this FOIA request. The Supreme Court has instructed
that “information initially contained in a record made for law
enforcement purposes continues to meet the threshold
requirements of Exemption 7 where that recorded information is
reproduced or summarized in a new document prepared for a no[n]-
law-enforcement purpose.” Abramson, 456 U.S. at 631–32.
For the reasons above, the Court concludes that DOJ has met
the threshold for invoking Exemption 7.
2. The Records Were Properly Withheld Pursuant to FOIA
Exemption 7(A)
Exemption 7(A) permits an agency to withhold records from
disclosure if the records were “compiled for law enforcement
purposes, but only to the extent that the production of such law
enforcement records or information . . . could reasonably be
expected to interfere with enforcement proceedings.” 5 U.S.C. §
552(b)(7)(A). “The principal purpose of Exemption 7(A) is to
prevent disclosures which might prematurely reveal the
government’s cases in court, its evidence and strategies, or the
nature, scope, direction, and focus of its investigations, and
thereby enable suspects to establish defenses or fraudulent
alibis or to destroy or alter evidence.” Maydak v. U.S. Dep’t of
Just., 218 F.3d 760, 762 (D.C. Cir. 2000) (citations omitted).
To successfully invoke the exemption, the agency must show that
15
“disclosure (1) could reasonably be expected to interfere with
(2) enforcement proceedings that are (3) pending or reasonably
anticipated.” Mapother v. Dep’t of Just., 3 F.3d 1533, 1540
(D.C. Cir. 1993) (emphasis omitted).
There is no dispute that the Review constitutes a pending
or reasonably anticipated law enforcement proceeding within the
meaning of FOIA Exemption 7(A). An ongoing investigation that is
likely to lead to future enforcement proceedings is enough to
invoke the exemption. See Ctr. for Nat. Sec. Stud. v. U.S. Dep’t
of Just., 331 F.3d 918, 926 (D.C. Cir. 2003). The Court of
Appeals for the District of Columbia Circuit (“D.C. Circuit”)
has repeatedly explained that “‘[s]o long as the investigation
continues to gather evidence for a possible future criminal
case, and that case would be jeopardized by the premature
release of that evidence, Exemption 7(A) applies.’” Citizens for
Resp. & Ethics in Wash. v. U.S. Dep’t of Just., 746 F.3d 1082,
1098 (D.C. Cir. 2014) (quoting Juarez v. Dep’t of Just., 518
F.3d 54, 59 (D.C. Cir. 2008)). Thus, the Review’s investigation—
which has already resulted in criminal proceedings in the
District Court for the District of Columbia—meets the latter two
requirements for FOIA Exemption 7(A).
“CREW [does] not contest[] DOJ’s withholding of personally
identifying information in OIP and EOUSA’s spreadsheets,
including the names of witnesses or subordinate law enforcement
16
officers, their home or office locations, or other specific
addresses or locations.” Pl.’s Mot., ECF No. 18-1 at 15.
Accordingly, CREW has clarified that it only seeks segregable
salary and cost information and thus continues to seek: (1)
travel destinations, (2) dollar amounts of investigation
expenses; and (3) personnel salaries. Id. at 11-12. With regard
to the “dollar amount of investigation expenses,” the responses
to the FOIA request indicate that this information consists of
the salary information and travel information. See SOMF, ECF No.
21-1 ¶¶ 21, 22, 23. Accordingly, the Court does not consider
this a separate category of information.
DOJ argues that “[t]he release of salaries, travel details
and expenditures, and staffing information related to the Review
could reasonably be expected to interfere and undermine the
Review’s ongoing investigatory activities.” Def.’s Mot., ECF No.
16-1 at 14. Specifically, DOJ argues that:
1. [R]elease of travel information—frequency
of domestic or foreign travel, would reveal
details about the scope, direction, and
nature of the investigation, including
information of where witnesses or persons
of interest are located.
2. [R]elease of salaries of the members of the
Review would not only reveal the exact
number of officials on the Review—which in
[and] of itself would disclose details
about the scope and breadth of the
investigation, but would also provide their
locality, relative experience, area of
17
expertise, and the occupational
composition of the Review; the combination
of this information speaks to the scope,
direction, and nature of the investigation.
Id. at 14-15.
Two of the cases DOJ cites provide little support for its
argument. In neither Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d
309 (D.C. Cir. 1988) nor Swan v. SEC, 96 F.3d 498 (D.C. Cir.
1996) were the records in any way similar to the records here.
Leopold v. CIA, 106 F. Supp. 3d 51 (D.D.C. 2015) provides some
support because the information sought there was expense
information; however, the context was not Exemption 7. For its
part, CREW cites no caselaw in support of its arguments that the
salary, travel, and expense information is not protected by
Exemption 7(A). See Pl.’s Mot., ECF No. 18-1 at 15; Pl.’s Reply,
ECF No. 23 at 7-8.
As a general matter, “an agency’s justification for
invoking a FOIA exemption is sufficient if it appears ‘logical’
or ‘plausible.’” Larson v. Dep’t of State, 565 F.3d 857, 862
(D.C. Cir. 2009) (citation omitted). Here, it appears logical
that disclosure of the travel information described supra “could
reasonably be expected to interfere with enforcement
proceedings.” 5 U.S.C. § 552(b)(7)(A). CREW specifically seeks
travel destinations. Pl.’s Mot., ECF No. 18-1 at 15. However,
disclosure of travel destinations logically could reveal “the
18
nature, scope, direction, and focus of [the] investigation[] . .
. .” Maydak, 218 F.3d at 762. Accordingly, the travel
information described supra is protected by Exemption 7(A).
It also appears logical that disclosure of the salaries of
the members of the Review “could reasonably be expected to
interfere with enforcement proceedings.” 5 U.S.C. §
552(b)(7)(A). CREW disputes that release of individual salaries
or salaries in the aggregate would not reveal anything
substantive about the scope or direction of the Review, such as
who is being investigated, the potential offenses being
investigated, or the expertise of individuals assigned to the
investigation because CREW is unaware of any way to extrapolate
from salary information the identity of a prosecutor or
investigator. Pl.’s Reply, ECF No. 23 at 6. However, disclosure
of individual salaries would disclose information about the
scope and breadth of the Review. And because the members of the
Review are compensated on a highly structured pay scale,
disclosure of this information would provide the number of
members of the Review, and from that information could likely be
extrapolated the general professional credential of each member,
such as attorney, investigator, paralegal, etc. Disclosure of
this information logically could reveal at least the scope of
the investigation. See Maydak, 218 F.3d at 762. Accordingly, the
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specific salaries of each member of the Review are protected by
Exemption 7(A).
CREW cites no caselaw in support of its arguments that the
salary, travel, and expense information is not protected by
Exemption 7(A). Rather, CREW points to fact that the Office of
Special Counsel releases expenditure information without
interfering with or signaling the course of its investigation.
Pl.’s Mot., ECF No. 18-1 at 15. DOJ regulations mandate that the
Special Counsel Office release a biannual statement of costs.
See DOJ Order 2030.4G, Control of Funds under Apportionment.
These statements provide top-line totals and summaries of the
resources expended by investigators, see id.; breaking down
costs into various categories, such as: Personnel Compensation
and Benefits; Travel and Transportation of Persons; Rent,
Communications, and Utilities; Contractual Services; and
Supplies and Materials, see U.S. Dep’t of Just., Special
Counsel’s Office Statement of Expenditures October 19, 2020
through March 31, 2021. DOJ responds—and the Court agrees—that
the release of the Special Counsel information pursuant to DOJ
regulations does not mean that DOJ cannot protect similar
information in response to a FOIA request in an unrelated matter
and where DOJ demonstrates the harm that would result. Def.’s
Reply, ECF No. 21 at 5. In its concluding brief, CREW appears to
represent that it would accept similar aggregate information in
20
response to its FOIA request. See Pl.’s Reply, ECF No. 23 at 6
(“Ascertaining the aggregate or individual salaries of those
working on the investigation might yield some insight into the
resources that DOJ is deploying.”); id. at 7 (“Ascertaining the
dollar figures of expenses associated with the investigation”
would not be harmful in the aggregate. “In fact, if DOJ provided
the top-line figures of these expenses (which it is withholding
in addition to the line-item expenses), it would presumably
reveal even less about the substance of the Durham
investigation.”). However, CREW has not requested in the
alternative that the Court order the aggregate information to be
disclosed. Accordingly, the issue has not been briefed.
For all these reasons, the Court GRANTS summary judgment to
DOJ with respect to the withholding of the spreadsheets under
FOIA Exemption 7(A).
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3. FOIA Exemptions 6 and 7(C)2
DOJ next argues that it may properly withhold names and
other identifying information about members of the Review and
other law enforcement personnel pursuant to FOIA Exemptions 6
and 7(C). See Def.’s Mot., ECF No. 16-1 at 16.3 CREW does not
challenge the withholding of this information under any FOIA
exemption. See Pl.’s Mot., ECF No. 18-1 at 15-16; Pl.’s Reply,
ECF No. 23 at 1. Because the “Court may not grant summary
judgment simply because the withholding [under a particular
exemption] was not challenged,” Tokar, 304 F. Supp. 3d at 94 n.3
(quoting Winston & Strawn, 843 F.3d at 505); the Court briefly
considers the application of these exemptions here.
2
CREW argues that “to the extent that any withholdings are
supported by valid assertions of privacy interests under
Exemption 6 or Exemption 7(C) that pertain to Attorney General
Barr, they are outweighed by the public’s interest in
understanding the extent and cost of the Attorney
General’s highly unusual direct, personal involvement in the
Durham investigation.” Pl.’s Mot., ECF No. 18-1 at 18. DOJ
responds that it withheld any cost information related to any
alleged travel by Attorney General Barr pursuant to Exemption
7(A) and did not argue that there was a privacy interest
associated with alleged travel by Attorney General Barr. Def.’s
Reply, ECF No. 21 at 9. CREW did not respond to this argument.
See generally Pl.’s Reply, ECF No. 23.
3 DOJ acknowledges in its opening brief that the Review
instituted criminal proceedings in the District Court for the
District of Columbia and therefore identified two members of the
Review after the agencies sent their final response to CREW’s
FOIA request. See Def.’s Mot., ECF No. 16-1 at 16 (citing
Brinkmann Decl., ECF No. 16-3 ¶ 31).
22
FOIA Exemption 6 protects information contained in
“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). “Information need not
be particularly intimate to merit protection under Exemption 6,
which shields from disclosure ‘personal information, such as
names and addresses,’ that, if released, ‘would create a
palpable threat to privacy.’” Garza v. U.S. Marshals Serv., No.
CV 16-0976, 2018 WL 4680205, at *11 (D.D.C. Sept. 28, 2018)
(quoting Prison Legal News v. Samuels, 787 F.3d 1142, 1147 (D.C.
Cir. 2015)), aff’d, No. 18-5311, 2020 WL 768221 (D.C. Cir. Jan.
22, 2020). FOIA Exemption 6 thus “has been construed broadly to
cover essentially all information sought from Government records
that ‘appl[y] to a particular individual.’” Pinson v. U.S. Dep’t
of Just., 202 F. Supp. 3d 86, 99 (D.D.C. 2016) (quoting U.S.
Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982)). For
this exemption to apply, the agency must “identify[] the
relevant privacy interests in nondisclosure and the public
interests in disclosure” and show that, “‘on balance, disclosure
would work a clearly unwarranted invasion of personal privacy.’”
Reed v. NLRB, 927 F.2d 1249, 1251 (D.C. Cir. 1991) (quoting
Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874
(D.C. Cir. 1989)). “‘[T]he privacy interest of an individual in
avoiding the unlimited disclosure of his or her name and address
23
is significant.’” Id. (quoting Nat’l Ass’n of Retired Fed.
Emps., 879 F.2d at 875).
FOIA Exemption 7(C) operates similarly, protecting records
compiled for law enforcement purposes to the extent that their
disclosure “could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” 5 U.S.C. §
552(b)(7)(C). “The proper application of ‘privacy exemptions [6
and 7(C)] turns on a balance of ‘the individual’s right of
privacy against the basic policy of opening agency action to the
light of public scrutiny.’” Garza, 2018 WL 4680205, at *12
(quoting CEI Wash. Bureau, Inc. v. Dep’t of Just., 469 F.3d 126,
128 (D.C. Cir. 2006)). If the agency meets its Exemption 6
burden, it will also meet the “lighter burden” under Exemption
7(C). See Seized Prop. Recovery, Corp. v. U.S. Customs & Border
Prot., 502 F. Supp. 2d 50, 60 (D.D.C. 2007); see also Roth v.
U.S. Dep’t of Just., 642 F.3d 1161, 1173 (D.C. Cir. 2011).
The Court concludes that DOJ has met its burden to withhold
names and other identifying information pursuant to FOIA
Exemptions 6 and 7(C). The Court accepts DOJ’s claim that
“disclosure . . . could subject these individuals to harassment
and to questioning as to the scope of their involvement in the
ongoing investigations of the Review.” Def.’s Mot., ECF No. 16-1
at 17 (citing Brinkmann Decl., ECF No. 16-3 ¶ 32; Jolly Decl.,
ECF No. 16-4 ¶ 19.). Because disclosure of the identities of
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these law enforcement officials would not add greatly to the
public’s interest in scrutinizing agency action, the balance of
the interests weighs in favor of non-disclosure for both
exemptions.
The Court therefore GRANTS summary judgment to DOJ with
respect to the withholding of names and other identifying
information about members of the Review and other law
enforcement personnel under FOIA Exemptions 6 and 7(C).
4. FOIA Exemption 7(F)
DOJ contends that FOIA Exemption 7(F) protects from
disclosure information about witnesses for the Review. See
Def.’s Mot., ECF No. 16-1 at 18-19. CREW does not argue
otherwise. See Pl.’s Mot., ECF No. 18-1 at 15-16; Pl.’s Reply,
ECF No. 23 at 1. As above, because the Court has an independent
duty to determine whether a particular FOIA exemption is
appropriate, see Tokar, 304 F. Supp. 3d at 94 n.3 (quoting
Winston & Strawn, 843 F.3d at 505); the Court considers this
exemption here.
FOIA Exemption 7(F) allows an agency to withhold
information within law enforcement records that “could
reasonably be expected to endanger the life or physical safety
of any individual.” 5 U.S.C. § 552(b)(7)(F). This exemption “has
been invoked to protect the identities of informants, sources,
and law enforcement personnel.” Michael v. U.S. Dep’t of Just.,
25
No. CV 17-0197 (ABJ), 2018 WL 4637358, at *12 (D.D.C. Sept. 27,
2018) (citing Hammouda v. Dep’t of Just. Off. of Info. Policy,
920 F. Supp. 2d 16, 26 (D.D.C. 2013); Fischer v. U.S. Dep’t of
Just., 723 F. Supp. 2d 104, 111 (D.D.C. 2010); Blanton v. Dep’t
of Just., 182 F. Supp. 2d 81, 87 (D.D.C. 2002)). In considering
claims for nondisclosure pursuant to Exemption 7(F), the Court
must “inquire[] whether or not there is a nexus between
disclosure and possible harm and whether the deletions were
narrowly made to avert the possibility of such harm.” Berard v.
Fed. Bureau of Prisons, 209 F. Supp. 3d 167, 174 (D.D.C. 2016)
(citing Albuquerque Pub. Co. v. U.S. Dep’t of Just., 726 F.
Supp. 851, 858 (D.D.C. 1989)).
Here, DOJ invoked Exemption 7(F) to protect the identities
of witnesses called by the Review whose safety could potentially
be at risk if their names were released. See Def.’s Mot., ECF
No. 16-1 at 18-19. These witnesses fall squarely within the
category of individuals who warrant protection pursuant to this
exemption. As EOUSA attests in its affidavit, “there was a
reasonable likelihood that a threat of harm could be posed to
the individuals who assisted in the course of the investigation,
should the withheld material be released.” Jolly Decl., ECF No.
16-4 ¶ 23. Because Exemption 7(F) does not require a balancing
test, see Michael, 2018 WL 4637358, at *12 (citing Raulerson v.
Ashcroft, 271 F. Supp. 2d 17, 29 (D.D.C. 2002)); the Court’s
26
inquiry is satisfied with DOJ’s credible statement of possible
harm.
Accordingly, the Court GRANTS summary judgment to DOJ as to
the withholding of witness information pursuant to FOIA
Exemption 7(F).4
C. The Records Are Not Reasonably Segregable
FOIA mandates that an agency disclose “[a]ny reasonably
segregable portion of a record . . . after deletion of the
portions which are exempt” from disclosure. 5 U.S.C. § 552(b).
Non-exempt portions of the record “must be disclosed unless they
are inextricably intertwined with exempt portions.” Mead Data
Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C.
Cir. 1977). CREW argues that DOJ has not met its burden based on
the representations made in its affidavits. See Pl.’s Mot., ECF
No. 18-1 at 16-18. However, the Court has concluded that the
information in the spreadsheets is exempt under FOIA Exemption
7(A). Accordingly, there is no non-exempt portion to segregate.
4 Because the Court concludes that FOIA Exemption 7(F) protects
witness information from disclosure, it need not determine
whether FOIA Exemption 5 also applies to this information.
27
V. Conclusion
For the foregoing reasons, the Court GRANTS DOJ’s Motion
for Summary Judgment, ECF No. 16; and DENIES CREW’s Motion for
Partial Summary Judgment, ECF No. 18.
An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
September 30, 2022
28