Citizens for Responsibility & Ethics In Wash. v. U.S. Dep't of Justice

1

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 23-262 (JEB)

United States District Court, District of Columbia

August 19, 2024

MEMORANDUM OPINION

JAMES E. BOASBERG CHIEF JUDGE

Plaintiff Citizens for Responsibility and Ethics in Washington is a non-profit organization whose professed mission is “to empower citizens to have an influential voice in government decisions and in the government decision-making process through the dissemination of information about public officials and their actions.” ECF No. 1 (Compl.) ¶ 5. In the wake of the 2022 midterm elections, it filed a Freedom of Information Act request with the U.S. Department of Justice for records concerning DOJ's efforts to send poll monitors to various jurisdictions during that election cycle - and, in particular, its response to resistance to such monitors from Missouri and Florida. Dissatisfied with the Government's sluggish response time, CREW filed this suit in early 2023. The Government has since turned over reams of responsive documents with redactions under numerous FOIA exemptions, prompting both parties to move for summary judgment on those issues. The Court will grant in part and deny in part both Motions.

I. Background

Among the many hats DOJ's Civil Rights Division (CRT) wears is protector of access to the ballot box. See DOJ Office of Public Affairs, Justice Department to Monitor Polls in 24 States for Compliance with Federal Voting Rights Laws, Nov. 7, 2022, https://perma.cc/L96T-DYML. The division discharges that responsibility, in part, through the work of its Voting Rights Section, which enforces the civil components of federal voting laws, and its Disability Rights Section, which, through its enforcement of the Americans with Disabilities Act, “ensure[s] that persons with disabilities have a full and equal opportunity to vote.” Id. In keeping with this mandate, CRT announced on November 7, 2022 - the eve of the national midterm elections - that it planned to dispatch poll monitors to 64 jurisdictions across 24 states. Id. The Secretaries of State in two of the listed states - Florida and Missouri - refused to allow such monitoring inside their polling sites. See ECF No. 20 (Def. MSJ) at 2; ECF No. 23 (Pl. MSJ) at 2. What ultimately happened there is beyond the scope of this Opinion.

Seeking to understand how Justice responded to that rebuff, CREW submitted a FOIA request to CRT on the day after the election for the following records between January 1, 2022, and the date the request was processed:

1. All records relating to the deployment of DOJ personnel to monitor elections in Florida, including but not limited to any responsive communications with Florida state, county, or local officials.

2. All records relating to the deployment of DOJ personnel to monitor elections in Missouri, including but not limited to any responsive communications with Missouri state, county, or local officials.

3. All records relating to the deployment of DOJ personnel to monitor elections in any state (other than Florida and Missouri) that declined to authorize or otherwise objected to the presence of DOJ election monitors at or near polling places, including but not limited to any responsive communications with state, county, or local officials.

4. All DOJ policies, procedures, guidance, memoranda, or similar records concerning the deployment of DOJ election monitors to polling places where state, county, or local officials decline to authorize or otherwise object to the presence of DOJ election monitors at or near polling places.

ECF No. 1, Exh. 1 (FOIA Request). Later that November, Justice issued a letter acknowledging receipt of the request and assigning it a tracking number. See Pl. MSJ at 3. Following two more months of silence, CREW filed this action on January 30, 2023, alleging that Justice had failed to resolve its request within the statutory deadline. See Compl., ¶¶ 17-23 (citing combined 30-day timeframe at 5 U.S.C. § 552(a)(6)(A)(i), (B)(i)-(iii)).

In lieu of immediate litigation, the parties negotiated a schedule for processing and producing responsive records. See ECF No. 9 (Apr. 19, 2023, JSR) at 2. DOJ identified such records in the custody of its Voting- and Disability-Rights Sections and produced them in four batches. See Pl. MSJ at 3-4. Only two are at issue here: the May 31, 2023, production, consisting of 29 pages of documents from the Disability Rights Section, and the August 30, 2023, production, which comprised a combined 126 additional pages from both Sections. Id. at 4. These productions were peppered - or blanketed, in some instances - with redactions under FOIA Exemptions 5, 6, 7(A), and 7(C)-(E). Plaintiff does not dispute the adequacy of the search or the withholding of any personal information - including certain names, email addresses, and phone numbers - pursuant to Exemptions 6 or 7(C). See Def. MSJ at 3-4; ECF No. 25 (Def. Reply & Opp.) at 10; ECF No. 27 (Pl. Reply) at 16 & n.3. Nor does it contest withholdings under Exemptions 7(D) and 7(E), which involve, respectively, the identity of a confidential source, see ECF No. 20-4 (Vaughn Index) at 7-8, and certain law-enforcement techniques concerning poll monitoring. Id. at 11, 13; see also Def. Reply & Opp. at 8 n.3. In other words, all that is at issue in the parties' now-ripe Cross-Motions for Summary Judgment are the withholdings invoking Exemptions 5, 7(A), and 7(C) to the extent that the withheld information is not in itself personally identifying. See generally Pl. MSJ; Def. MSJ at 3-4 (citing ECF No. 19 (Joint Status Report of Jan. 3, 2024)); Pl. Reply at 16-17.

To aid in its determination, the Court on August 2, 2024, ordered the Government to submit unredacted copies of the disputed records for in camera review. See Minute Order of Aug. 2, 2024. The Court has now carefully assessed the redactions under each exemption and can decide the matter.

II. Legal Standard

Summary judgment must be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it can affect the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248; see also Scott v. Harris, 550 U.S. 372, 380 (2007); Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

“FOIA cases typically and appropriately are decided on motions for summary judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009); Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they “describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Larson v. U.S. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation omitted). Such affidavits or declarations “are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation and internal quotation marks omitted). “Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action' and directs the district courts to ‘determine the matter de novo.'” DOJ v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)). Summary judgment is only proper when the court is assured that the record justifies the result. See Ctr. For Investigative Reporting v. Customs & Border Prot., 436 F.Supp.3d 90, 100 (D.D.C. 2019).

III. Analysis

Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). The statute promotes these aims by providing that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules[,] . . . shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). The Government need not, however, turn over requested information that falls into one of nine statutorily created exemptions from FOIA's broad directive. Id. § 552(b)(1)-(9). This Court can compel the release of any records that do not satisfy the requirements of at least one exemption. See Reporters Comm., 489 U.S. at 755.

A “veritable avalanche of FOIA-related precedent” guides this Court's determination of whether the Government has carried its burden of...