Judicial Watch, Inc. v. U.S. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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JUDICIAL WATCH, INC., )
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Plaintiff, )
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v. ) Civil Action No. 16-1888 (RMC)
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U.S. DEPARTMENT OF JUSTICE, )
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Defendant. )
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MEMORANDUM OPINION
Judicial Watch, Inc. filed a Freedom of Information Act (FOIA) request seeking
records from the Federal Bureau of Investigation (FBI) regarding certain interviews during the
investigation of Rod Blagojevich, the former governor of Illinois. The interviews of interest
were FBI interviews of former President Barack Obama, former presidential Chief of Staff Rahm
Emanuel, and former Senior Advisor to the President Valerie Jarrett.
After the FBI searched its records, it informed Judicial Watch that all records it
had located would be withheld under various FOIA exemptions. Judicial Watch filed suit and
both parties moved for summary judgment. This Court granted the government’s Motion for
Summary Judgment under FOIA Exemption 7(A), which protects law enforcement records, as
the prosecution and conviction of Mr. Blagojevich was still subject to further appeal. See
Judicial Watch, Inc. v. DOJ, 282 F. Supp. 3d 242 (D.D.C. 2017).
Judicial Watch filed an appeal. During the pendency of that appeal, Mr.
Blagojevich’s appeals ended when the Supreme Court denied his petition. See Blagojevich v.
United States, 136 S. Ct. 1491 (2016). The case was therefore returned here for consideration of
the remaining FOIA exemptions asserted by the FBI. Upon review of the entire record, the
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Court once again agrees with the government that the records are exempt from disclosure. The
Court will grant the Motion for Summary Judgment filed by the U.S. Department of Justice
(DOJ) and will deny the cross motion filed by Judicial Watch.
I. BACKGROUND
The facts of this case are described in detail in the Court’s previous Memorandum
Opinion and will not be repeated here. Judicial Watch, 282 F. Supp. 3d at 246-47. The relevant
facts are summarized below with the addition of subsequent developments.
On May 9, 2012, Judicial Watch submitted requests to FBI’s Record/Information
Dissemination Section under the Freedom of Information Act, 5 U.S.C. § 552. 1 See Ex. A, Decl.
of David M. Hardy (Hardy Decl.) [Dkt. 13-2], Judicial Watch Freedom of Information Act
Request (FOIA Request) [Dkt. 13-2] at 27.2, 3 The FOIA Request asked for copies of all records
related to interviews of three top Obama Administration officials, that is, the former President,
his Chief of Staff, and Senior Advisor to the President concerning former Illinois Governor Rob
Blagojevich. Id. at 28. The FBI’s search for records located three forms 302 (Forms 302),
which the FBI uses to summarize facts and statements made by potential witnesses during
interviews. See Hardy Decl. ¶ 23; Decl. of Debra Riggs Bonamici (Bonamici Decl.) [Dkt. 13-3]
¶ 7. As Mr. Blagojevich’s conviction for attempted extortion, wire fraud, and lying to federal
investigators was still subject to further appeal at that time, the FBI notified Judicial Watch that
it would be withholding the records pursuant to FOIA Exemption 7(A), which protects records
1
Despite the June 1, 2011 date on the request, the parties agree that it was actually submitted in
May 2012. See Pl.’s Resp. to Def.’s Statement of Material Facts (Pl.’s SOF) [Dkt. 16] ¶ 1.
2
Since the FBI is a constituent entity of DOJ, that Department handles all FBI FOIA cases.
3
When citing to exhibits to the declarations, the Court cites to the electronic case filing (ECF)
header page number, not the original page number of the filed document.
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compiled for law enforcement purposes. See Ex. C, Hardy Decl., June 18, 2012 Letter from DOJ
to Judicial Watch [Dkt. 13-2] at 34. FBI also stated that the requested records were fully
protected by FOIA Exemption 5, which protects attorney work-product, and protected in part by
Exemptions 3, 6, 7(C), and 7(E). See Hardy Decl. ¶ 37; Bonamici Decl. ¶¶ 4-8. Judicial Watch
filed suit to contest the applicability of the cited FOIA Exemptions and DOJ moved for summary
judgment. Def.’s Mot. for Summ. J. [Dkt. 13].4 Upon review, this Court granted DOJ’s motion
for summary judgment, allowing the Forms 302 to be withheld under Exemption 7(A). Judicial
Watch, 282 F. Supp. 3d at 250-51. It did not reach the other claimed exemptions.
As Mr. Blagojevich had exhausted his appeals in the interim, the applicability of
Exemption 7(A) became moot and the case was remanded for consideration of the additional
FOIA Exemptions claimed by the FBI. See Mandate [Dkt. 26].5
II. LEGAL STANDARD
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.” Ctr.
for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003) (citing John Doe Agency v.
John Doe Corp., 493 U.S. 146, 152 (1989)). Under FOIA, federal agencies must release records
to the public upon request, unless one of nine statutory exemptions apply. See NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 136 (1975); 5 U.S.C. § 552(b). To prevail in a FOIA case, a
plaintiff must show that an agency has improperly withheld agency records. See Odland v.
4
See also Mem. of P. & A. in Supp. of Def.’s Mot. for Summ. J. (Def.’s Mem.) [Dkt. 13-1]; Pl.’s
Mem. of P. & A. in Opp’n to Def.’s Mot. for Summ. J. (Pl.’s Opp’n) [Dkt. 15]; Pl.’s Cross-Mot.
for Summ. J. [Dkt. 16]; Mem. of P. & A. in Opp’n to Pl.’s Mot. for Summ J. and in Reply in
Supp. of Def.’s Mot. for Summ. J. [Dkt. 17]; Pl.’s Reply to Def.’s Opp’n to Cross-Mot. for
Summ. J. (Pl.’s Reply) [Dkt. 21].
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Section 552(a)(4)(B) of FOIA grants subject-matter jurisdiction and makes this an appropriate
venue. Judicial Watch, 282 F. Supp. 3d at 247 (citing 5 U.S.C. § 552(a)(4)(B)).
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FERC, 34 F. Supp. 3d 3, 13 (D.D.C. 2014) (citing DOJ v. Tax Analysts, 492 U.S. 136, 142
(1989)). The defending agency must demonstrate that its search for responsive records was
adequate, that any invoked exemptions actually apply, and that any reasonably segregable non-
exempt information has been disclosed. See id.FOIA cases are typically and appropriately decided on summary judgment. See
Sanders v. Obama, 729 F. Supp. 2d 148, 154 (D.D.C. 2010). Under Rule 56 of the Federal Rules
of Civil Procedure, summary judgment must be granted when the pleadings, the discovery and
disclosure materials on file, and any affidavits, show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c)(2); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The party moving
for summary judgment “bears the initial responsibility . . . [to] demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In ruling on
a motion for summary judgment, a court must draw all justifiable inferences in favor of the
nonmoving party and accept the nonmoving party’s evidence as true. See Anderson, 477 U.S. at
255. The nonmoving party, however, must provide more than the “mere existence of a scintilla
of evidence . . . ; there must be evidence on which the jury could reasonably find for the
[nonmoving party].” Id. at 252.
III. ANALYSIS
A. Adequacy of the Search
FOIA requires an agency to conduct a good faith search that is reasonably
calculated to produce all relevant records. Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C.
Cir. 1990). An agency can support the adequacy of its search with affidavits that aver to its
reasonableness; such affidavits are entitled to a presumption of good faith. See Defs. of Wildlife
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v. Dep’t of Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004). A plaintiff can only rebut such
affidavits when they are inadequate on their face or by a showing of bad faith sufficient to
overcome the presumption that the agency acted in good faith. See id. If contested, the agency
must prove the reasonableness and good faith of its search beyond material doubt. See Nation
Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995).
Judicial Watch does not contest the adequacy of FBI’s search. After review of the
affidavits submitted by the government regarding the scope and methods of the search, and
without opposition, the Court reaffirms that FBI met its obligation to conduct a reasonable
search.
B. FOIA Exemption 5
In a FOIA action, an agency seeking summary judgment must show that the
withheld information is exempt from disclosure, and that all non-exempt material has been
segregated and produced. See 5 U.S.C. § 552(a)(4)(B). To make the necessary showing on these
points, an agency can again rely on detailed affidavits or declarations. Ctr. for Int’l Envtl. Law v.
Office of the U.S. Trade Representative, 237 F. Supp. 2d 17, 22 (D.D.C. 2002).
On remand, the government renews its argument that the Forms 302 are covered
by FOIA Exemption 5 and are not subject to disclosure. Exemption 5 allows agencies to
withhold records that “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). This description includes records that would be
shielded from discovery by the attorney work-product doctrine. See Judicial Watch, Inc. v. DOJ,
432 F.3d 366, 369 (D.C. Cir. 2005). In most civil litigation, the traditional work-product
doctrine may be subject to a balancing of needs between the litigating parties and offers lesser
protection to fact work product (objective facts and information collected by the attorney or her
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agents) than to opinion work product (theories and information flowing from the mental
processes of the attorney). Although Congress intended Exemption 5 to be “as narrow as is
consistent with efficient Government operations,” FTC v. Grolier Inc., 462 U.S. 19, 23 (1983),
the D.C. Circuit has recognized that in the context of FOIA, the attorney work-product doctrine
contains no balancing requirements and should “be interpreted broadly and held largely
inviolate.” Judicial Watch, 432 F.3d at 369. In other words, Exemption 5 extends the same
protections to both kinds of work product. See Martin v. Office of Special Counsel, 819 F.2d
1181, 1187 (D.C. Cir. 1987) (“The work-product privilege simply does not distinguish between
factual and deliberative material.”). Therefore, “[a]lthough work product protection may be
overcome for cause in civil cases, any materials disclosed for cause are not ‘routinely’ or
‘normally’ discoverable and, for that reason, are exempt under FOIA.” Williams & Connolly v.
SEC, 662 F.3d 1240, 1243 (D.C. Cir. 2011) (quoting Grolier, 462 U.S. at 26-27). If the records
at issue here are protected by the attorney work-product doctrine, they are exempt from
disclosure under Exemption 5.
The attorney work-product doctrine was explained in Hickman v. Taylor, 329
U.S. 495 (1947), as intended to protect lawyers and their agents who are assembling facts and
law in anticipation of litigation. Hickman prevented the production of “oral and written
statements of witnesses” made to attorneys or their agents. Id. at 508. Inasmuch as the same
information was readily available to the opposing party if it conducted interviews or submitted
interrogatories, the Court believed that compelling disclosure was more likely to promote
“[i]nefficiency, unfairness and sharp practices” rather than transparency, and would all but
ensure that “much of what is now put down in writing would remain unwritten.” Id. at 511.
Therefore, the Court warned that “[n]ot even the most liberal of discovery theories can justify
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unwarranted inquiries into the files and the mental impressions of an attorney.” Id. at 510.
Today, the attorney work-product doctrine protects documents that were prepared in anticipation
of litigation by an attorney or an attorney’s agent. See United States v. Deloitte LLP, 610 F.3d
129, 135 (D.C. Cir. 2010) (citing Fed. R. Civ. P. 26(b)(3)).
In evaluating whether material was prepared in anticipation of litigation, the D.C.
Circuit has adopted a “because of” test. Equal Emp’t Opportunity Comm’n v. Lutheran Soc.
Servs., 186 F.3d 959, 968 (D.C. Cir. 1999). “This inquiry encompasses two related but distinct
concepts—one a question of timing and the other a question of intent.” Animal Welfare Inst. v.
Nat’l Oceanic & Atmospheric Admin., 370 F. Supp. 3d 116, 135 (D.D.C. 2019) (citing U.S. ex
rel. Fago v. M & T Mortg. Corp., 242 F.R.D. 16, 18 (D.D.C. 2007)).
The threshold temporal inquiry considers “whether there was ‘a subjective belief
that litigation was a real possibility’ at the time the document was prepared and whether that
belief was ‘objectively reasonable.’” Id. (quoting Lutheran Soc. Servs., 186 F.3d at 968)
(emphasis added). In the present case, Debra Bonamici, an Assistant United States Attorney
directly familiar with the investigation’s evidence and strategy, declared that the interviews were
conducted while the “investigation [was] moving rapidly toward indictment.” Bonamici Decl. ¶
7. Specifically, Mr. Blagojevich was arrested on a criminal complaint on December 9, 2008, id.
¶ 5, and the interviews at issue here were also conducted by the FBI in December 2008, while the
government was moving toward indictment. Id. ¶ 8. The fact that Mr. Blagojevich had already
been arrested on a criminal complaint on December 9, 2008—the same month the relevant
interviews were conducted—demonstrates that the DOJ was actively engaged in litigation
against Mr. Blagojevich, not merely contemplating it. Id.; see also Def.’s Mem. at 14. Without
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doubt, the FBI interviewed the Obama Administration officials and prepared the Forms 302
reflecting those interviews when litigation was in the offing.
Once it is established that litigation was reasonably anticipated, the second
element of the “because of” test—“the motivational element”—“demands that the document be
prepared or obtained because of the prospect of litigation.” Animal Welfare, 370 F. Supp. 3d at
135 (citing Lutheran Soc. Servs., 186 F.3d at 968). “[T]he question is whether [the document]
records information prepared by [the attorneys] or [their] representatives because of the prospect
of litigation.” Deloitte, 610 F.3d at 137.
In the instant matter, “[t]he interviews were conducted for the purpose of
gathering evidence that could be presented to a grand jury and that could factor into the case to
be presented at the trial of Blagojevich and others.” Bonamici Decl. ¶ 8. Judicial Watch argues
that the Forms 302 cannot be protected by the attorney work-product doctrine because FBI
policy compels all agents “to complete and submit an FD-302 form to document all subject and
witness interviews.” Decl. of Michael J. Sharkey (Sharkey Decl.) [Dkt. 15-1] ¶ 3. However, the
fact that agency policy requires the creation of Forms 302 does not negate attorney work-product
protections in the appropriate circumstances, as “material generated in anticipation of litigation
may also be used for ordinary business purposes without losing its protected status.” Deloitte,
610 F.3d at 138. Per Deloitte, the germane inquiry is whether the Forms 302 would have been
prepared by the FBI agents but for the impending prosecution of Mr. Blagojevich. Id. (“[A]
document can contain protected work-product material even though it serves multiple purposes,
so long as the protected material was prepared because of the prospect of litigation.”); see also
United States v. Adlman, 134 F.3d 1194, 1195 (2d Cir. 1998) (“Where a document was created
because of anticipated litigation, and would not have been prepared in substantially similar form
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but for the prospect of that litigation, it falls within Rule 26(b)(3).”). Because the interviews
occurred and the Forms 302 were drafted “for the purpose of gathering evidence that could be
presented to a grand jury and that could factor into the case,” Bonamici Decl. ¶ 8, the Forms 302
were prepared in anticipation of litigation.
Judicial Watch further argues that the Forms 302 are not attorney work product
because they were not prepared by an attorney. Attorney work product frequently includes
records created by an attorney himself and “material prepared by agents for the attorney.”
United States v. Nobles, 422 U.S. 225, 238-39 (1975). Thus, the scope of work product
recognizes that “attorneys often must rely on the assistance of investigators and other agents in
the compilation of materials in preparation for trial.” Id. at 238. However, there are sensible
limits on the protection extended to documents prepared by law enforcement personnel to assist
prosecuting attorneys as “it is not necessarily the case that when a law enforcement agent
conducts a witness interview as part of a criminal investigation, he does so as an agent of a
Government attorney.” United States ex rel. Landis v. Tailwind Sports Corp., 303 F.R.D. 419,
424 (D.D.C. 2014). Law enforcement agents operating in their independent investigatory
capacities are not usually considered attorney agents whose notes are protected as attorney work
product, but once they are acting in a supportive role to an attorney preparing a case for
indictment or prosecution, the attorney work-product protection applies to their work product
under FOIA Exemption 5.
After considering the circumstances surrounding the interviews and preparation of
the Forms 302, this Court finds that the FBI agents were acting as agents of attorneys in the
Chicago Office of the United States Attorney when they drafted the Forms 302 and, therefore,
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that those records are protected from release under FOIA by the attorney work-product doctrine
recognized in Exemption 5. As explained by Ms. Bonamici:
During December 2008, the USAO, FBI, and other investigative
agencies continued to collaborate in selecting, planning, and
conducting interviews and gathering additional evidence . . . in
support of the USAO’s effort to indict, and subsequently try,
Blagojevich and others. . . . [T]he assigned prosecutors steered
investigative efforts, focusing on information needed to make
charging decisions, support anticipated charges, and, ultimately, to
present at trial. . . . [A]ssigned prosecutors spoke and met with
agents several times per day to identify additional witnesses that
needed to be interviewed, and strategize regarding the scope of those
interviews.
Bonamici Decl. ¶ 7. For the specific high-level interviews at issue, the “[p]rosecutors
participated in selecting these witnesses . . . , discussing and determining in advance the
investigative strategy for each interview, and questioning the witnesses.” Id. ¶ 8. The FBI
agents were working under the direction of Assistant United States Attorneys (AUSAs) and in
support of their decisions concerning the Blagojevich indictment and trial. The lawyers “rel[ied]
on the assistance of investigators and other agents in the compilation of materials in preparation
for trial” so that those materials share the protections of attorney work product. Nobles, 422 U.S.
at 238.
Judicial Watch’s remaining arguments are centered around attempts to distinguish
the Forms 302 at issue here from records protected in other Exemption 5 cases. First, Judicial
Watch distinguishes the records addressed in New York Times Co. v. Department of Justice, 138
F. Supp. 3d 462 (S.D.N.Y. 2015), by pointing out that here, these Forms 302 were neither drafted
nor edited by AUSAs. However, New York Times did not revolve around whether the Forms 302
were drafted or edited by an attorney. Rather, it held that Forms 302 could be protected by the
attorney work-product doctrine “when they reveal an attorney’s strategic impressions and mental
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processes,” which “could occur through the attorney’s mere selection of whom to interview.”
New York Times, 138 F. Supp. 3d at 472. “Similarly, the questions [an attorney] or his
subordinates ask witnesses almost certainly reveal his thinking about the substance of the case.”
Id. at 475-76. The Bonamici Declaration makes clear that the interviewees were selected by
attorneys and both AUSAs and FBI agents participated in the interviews. Bonamici Decl. ¶¶ 7-8.
New York Times would protect these records under the attorney work-product doctrine.
Similarly, this case is not legally distinguishable from Martin, 819 F.2d 1181, as
much as Judicial Watch tries to make it so: The theory is that because the AUSAs had no
“involvement in preparation of the 302s,” the Forms 302 are not similar to the records in Martin.
Pl.’s Reply at 5. But Judicial Watch understates the similarities. In Martin, the protected records
were entirely drafted by the witnesses, after attorneys coordinated and selected interviewees. See
819 F.2d at 1183. These facts track the present issue, where FBI agents prepared the Forms 302
after witness interviews for which the AUSAs had selected the subjects, coordinated the
questioning and strategy, and had been participants. See Bonamici Decl. ¶ 7. Judicial Watch
suggests a new limit on the scope of the attorney work-product doctrine, arguing that the
government does not claim that attorneys specifically directed the FBI agents to prepare Forms
302 after the interviews. However, the Bonamici Declaration makes it clear that the AUSAs
“rel[ied] on the assistance of investigators and other agents in the compilation of materials in
preparation for trial.” Nobles, 422 U.S. at 238.
Because the Forms 302 were prepared in anticipation of impending litigation by
FBI agents acting under the substantial direction of Assistant United States Attorneys, they are
records exempt from FOIA release as attorney work product under Exemption 5.
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C. Segregability
FOIA contains a segregation clause that demands all reasonably segregable, non-
exempt material be released to a requester. 5 U.S.C. § 552(b). The specific issue presented
here—whether records protected from disclosure by Exemption 5’s work-product doctrine can
contain segregable material—was decided in another FOIA dispute between the parties. See
Judicial Watch, 432 F.3d at 370. There, the D.C. Circuit held that the government was “on the
mark” when it stated in its appellate brief that “where a document is withheld pursuant to the
work-product doctrine, there simply are no reasonably segregable portions . . . to release after
deletion of the portions which are exempt.” Id. (quoting 5 U.S.C. § 552(b) (internal quotation
marks omitted)). Accordingly, as the entire contents of the records at issue here constitute
attorney work product, protected from disclosure by Exemption 5 in their entirety, there is no
segregable information. For this reason, the Court declines the request of Judicial Watch that it
review the Forms 302 in camera to determine if any information may be produced.
IV. CONCLUSION
For reasons stated above, the Court will grant DOJ’s Motion for Summary
Judgment, Dkt. 13, and will deny Judicial Watch’s Cross-Motion for Summary Judgment, Dkt.
16. A memorializing Order accompanies this Memorandum Opinion.
Date: June 25, 2019
ROSEMARY M. COLLYER
United States District Judge
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