Buzzfeed, Inc. v. U.S. Dep't of Justice

BUZZFEED, INC., Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant.

17-CV-7949 (VSB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 11, 2019

OPINION & ORDER

Appearances:

Nabiha Syed

Matthew Lynn Schafer

BuzzFeed, Inc.

New York, New York

Counsel for Plaintiff

Arastu Kabeer Chaudhury

Assistant United States Attorney

New York, New York

Counsel for Defendant

VERNON S. BRODERICK, United States District Judge:

Plaintiff BuzzFeed, Inc. brings this action against Defendant the United States Department of Justice for injunctive relief under the Freedom of Information Act ("FOIA"), 5 U.S.C. §§ 552, et seq. Before me is Defendant's motion for summary judgment and Plaintiff's cross motion for summary judgment. For the following reasons, Defendant's motion is granted in part and denied in part, and Plaintiff's motion is granted in part and denied in part.

I. Background and Procedural History¹

At the center of this case is a report of investigation (the "Report") issued by the United States Department of Justice ("DOJ" or the "Government") Office of Inspector General (the "OIG") concerning a consensual affair between a United States Attorney (the "U.S. Attorney") and a supervisory Assistant United States Attorney (the "Supervisory AUSA" and, together with the U.S. Attorney, the "Officials") employed in a United States Attorney's Office (the "Office"). (Def.'s Mem. 1.)² On May 16, 2017, the OIG received a FOIA request from Plaintiff. (Id. at 2.) In the request, Plaintiff sought "access to and/or copies of the full report by the Office of the Inspector General related to the Investigative Summary published on OIG's website on May 16, 2017, entitled: 'Findings of Misconduct by a Former United States Attorney for Having an Inappropriate Relationship with a Subordinate.'" (Id.) Plaintiff requested the "full report that was provided by OIG to the relevant Justice Department components." (Waller Decl. ¶ 5.)³

On June 12, 2017, the OIG responded to Plaintiff's request by providing Plaintiff with a copy of the Report, which was redacted in part pursuant to 5 U.S.C. §§ 552(b)(6) and (b)(7)(C) ("Exemption 6" and "Exemption 7(C)," respectively). (Def.'s Mem. 2.) On March 7, 2018, the Government supplemented that release by producing two additional pages consisting of a list of exhibits to the Report, which were also redacted in part pursuant to the same exemptions. (Id.)

The information redacted by the OIG falls into the following categories: (1) the identity and identifying information of the U.S. Attorney; (2) the identity and identifying information of the Supervisory AUSA; (3) the names and identifying information of third parties, includingwitnesses referenced in the Report; (4) all informational content, including but not limited to the name and identifying information of an additional subject of the investigation, related to allegations the OIG determined were not supported by evidence and were without merit; and (5) the names of non-supervisory law enforcement agents involved in the OIG investigation. (Waller Decl. ¶ 10.) On June 28, 2017, Plaintiff appealed the OIG's decision to redact the Report. (See Compl. ¶ 20, Ex. C.)⁴ On September 15, 2017, the DOJ's Office of Information Policy upheld the OIG's redactions. (Id. ¶ 22, Ex. E.)

On October 16, 2017, Plaintiff initiated the current action by filing its complaint with this Court. Defendant filed its answer on November 16, 2017. (Doc. 9.) On January 31, 2018, I set a briefing scheduled for the parties' anticipated cross motions for summary judgment. (Doc. 12.) On March 21, 2018, Defendant filed its motion, along with its papers in support. (Docs. 15-17.) On April 20, 2018, Plaintiff filed its opposition and cross motion, along with its papers in support. (Docs. 18-23.) On May 18, 2018, Defendant filed its reply, along with papers in support, (Docs. 24-25), and on June 1, 2018, Plaintiff filed its reply, (Doc. 26).

II. Legal Standards

A. Summary Judgment

"Summary judgment is the procedural vehicle by which most FOIA actions are resolved." N.Y. Times Co. v. U.S. Dep't of Def., 499 F. Supp. 2d 501, 509 (S.D.N.Y. 2007) (internal quotation marks omitted). Summary judgment is appropriate when "the parties' submissions show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fay v. Oxford Health Plan, 287 F.3d 96, 103 (2d Cir. 2002); see also Fed. R. Civ. P. 56(a). "[T]he dispute about a material fact is 'genuine[]' . . . ifthe evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law," and "[f]actual disputes that are irrelevant or unnecessary will not be counted." Id.

On a motion for summary judgment, the moving party bears the initial burden of establishing that no genuine factual dispute exists; if satisfied, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial," id. at 256, and to present such evidence that would allow a jury to find in its favor, see Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). To defeat a summary judgment motion, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

In considering a summary judgment motion, a court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (internal quotation marks omitted); see also Matsushita, 475 U.S. at 587. "[I]f there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party," summary judgment must be denied. Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002).

B. FOIA

"Congress intended FOIA to permit access to official information long shielded unnecessarily from public view." Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011) (internal quotation marks omitted). "FOIA thus mandates that an agency disclose records on request,unless they fall within one of nine exemptions." Id. "These exemptions are explicitly made exclusive, and must be narrowly construed." Id. (internal quotation marks omitted); see also U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989) ("Consistent with [FOIA's] goal of broad disclosure, these exemptions have been consistently given a narrow compass.").

For an agency to prevail on a summary judgment motion in a FOIA case, it "must demonstrate that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Ruotolo v. Dep't of Justice, Tax Div., 53 F.3d 4, 9 (2d Cir. 1995) (internal quotation marks omitted); see also Garcia v. U.S. Dep't of Justice, Office of Info. & Privacy, 181 F. Supp. 2d 356, 370 (S.D.N.Y. 2002) (applying the same standard to redactions based on FOIA exemptions). "Summary judgment in favor of the FOIA plaintiff is appropriate when an agency seeks to protect material which, even on the agency's version of the facts, falls outside the proffered exemption," but should be denied if the agency satisfies its burden "to show that requested material falls within a FOIA exemption." Seife v. U.S. Dep't of State, 298 F. Supp. 3d 592, 606 (S.D.N.Y. 2018) (internal quotation marks omitted).

"FOIA specifies that a district court must conduct de novo review of an agency's claims to exemptions," Lee v. FDIC, 923 F. Supp. 451, 453 (S.D.N.Y. 1996), which are to be "narrowly construed with all doubts resolved in favor of disclosure," Halpern v. FBI, 181 F.3d 279, 287 (2d Cir. 1999). "Agency affidavits or declarations may justify summary judgment if they are sufficient to afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding." Seife, 298 F. Supp. 3d at 606 (internal quotation marks omitted). "Affidavits submitted by an agency are accorded a presumption of good faith." Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994)(internal quotation marks omitted).

III. Discussion

The Government moves for summary judgment to uphold the OIG's redactions to the Report. Plaintiff cross moves for summary judgment seeking disclosure of the names and identifying information of the U.S. Attorney and the Supervisory AUSA, along with information concerning allegations of misconduct that the OIG determined were meritless.⁵ I address each of these motions.

A. Applicable Law

FOIA Exemption 6 exempts from disclosure information from personnel, medical, or other similar files, the disclosure of which "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). The 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). The statutory language concerning files "similar" to personnel or medical files has been read broadly by the Supreme Court to encompass any "information which applies to a particular individual . . . sought from Government records." Id. at 602; see also Cook v. Nat'l Archives & Records Admin, 758 F.3d 168, 174 (2d Cir. 2014).

FOIA Exemption 7(C) exempts from disclosure "records or information compiled for lawenforcement purposes" when production of such records or information "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). Exemption 7(C) "is more protective of privacy than...