Frank LLP v. Consumer Fin. Prot. Bureau

327 F.Supp.3d 179

FRANK LLP, Plaintiff,

v.CONSUMER FINANCIAL PROTECTION BUREAU, Defendant.

Civil Action No. 16-cv-2105 (DLF)

United States District Court, District of Columbia.

Signed September 4, 2018

Gregory A. Frank, Frank LLP, New York, NY, for Plaintiff.

Benton Gregory Peterson, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

DABNEY L. FRIEDRICH, United States District Judge

Since its inception in February 2016, this FOIA dispute has dwindled to a single issue: whether the Consumer Financial Protection Bureau appropriately withheld portions of two investigational hearing transcripts under 5 U.S.C. § 552(b)(7)(E). Before the Court are the parties' cross-motions for summary judgment. For the reasons that follow, the Court will grant summary judgment in favor of the CFPB.

I. BACKGROUND¹

In February 2016, Frank LLP (Frank) submitted a FOIA request to the Consumer Financial Protection Bureau (CFPB) seeking documents related to the CFPB's enforcement action against—and eventual consent order with—Portfolio Recovery Associates (PRA). Lazier Decl. ¶ 5, Dkt. 16-3. Frank represents plaintiffs in a lawsuit against PRA and believes that "[r]ecords and information in the CFPB's possession that pertain to the CFPB's findings against PRA and its attorneys constitute evidence that would greatly strengthen the claims of the plaintiffs and putative class" in that lawsuit. Pl.'s Opp'n & Cross-Mot., Dkt. 20 at 3. After submitting its request, Frank entered into a series of back-and-forths with the CFPB that included various administrative denials, appeals, and—after Frank filed suit—productions. See Lazier Decl. ¶¶ 5–21, Dkt. 16-3 (describing the process). The final production included redacted versions of two investigational hearing transcripts from the CFPB's interviews of two PRA employees. Id. ¶ 21; see also Pl.'s Opp'n & Cross-Mot., Dkt. 20 at 7. The CFPB invoked exemption 7(E) as the basis for the redactions. Pl.'s Opp'n & Cross-Mot., Dkt. 20 at 7; see also 5 U.S.C. § 552(b)(7)(E).

In June 2017, the parties filed a joint status report indicating that they had "narrowed the known issues in this matter to redactions within [the] two transcripts." Dkt. 14 at 1. The Court ordered briefing, Dkt. 15, and the parties filed cross-motions for summary judgment, Dkts. 16, 20, 21. The case was reassigned to the undersigned judge on December 4, 2017.

II. LEGAL STANDARDS

Rule 56 of the Federal Rules of Civil Procedure mandates that "[t]he court shall grant summary judgment 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). In FOIA litigation, when a federal agency moves for summary judgment, all facts and inferences must be viewed in the light most favorable to the requester, and the agency bears the burden of showing that it complied with FOIA. Chambers v. U.S. Dep't of Interior , 568 F.3d 998, 1003 (D.C. Cir. 2009).

To prevail under Rule 56, a federal agency "must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from [FOIA's] inspection requirements." Perry v. Block , 684 F.2d 121, 126 (D.C. Cir. 1982) (per curiam) (quoting Nat'l Cable Television Ass'n, Inc. v. F.C.C. , 479 F.2d 183, 186 (D.C. Cir. 1973) ). The agency must explain in reasonable detail why an exemption applies to any withheld records. Judicial Watch, Inc. v. Food & Drug Admin. , 449 F.3d 141, 147 (D.C. Cir. 2006).

"[T]he vast majority of FOIA cases can be resolved on summary judgment." Brayton v. Office of the U.S. Trade Representative , 641 F.3d 521, 527 (D.C. Cir. 2011). That is in part because "[t]he peculiarities inherent in FOIA litigation, with the responding agencies often in sole possession of requested records and with information searches conducted only by agency personnel, have led federal courts to rely on government affidavits to determine whether the statutory obligations of the FOIA have been met." Perry , 684 F.2d at 126. Accordingly, "[i]n FOIA cases, summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Judicial Watch, Inc. v. U.S. Secret Serv. , 726 F.3d 208, 215 (D.C. Cir. 2013) (internal quotations and alterations omitted). In the absence of evidence to the contrary, the agency's affidavit is presumed to have been submitted in good faith. SafeCard Servs., Inc. v. S.E.C. , 926 F.2d 1197, 1200 (D.C. Cir. 1991).

Here, the CFPB has withheld portions of two investigational hearing transcripts and invoked exemption 7(E). That exemption allows agencies to withhold

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.

5 U.S.C. § 552(b)(7)(E). The parties dispute whether the withheld materials qualify under this exemption.

III. ANALYSIS

Frank does not appear to dispute, and the Court has little trouble concluding, that the investigational hearing transcripts at issue were "compiled for law enforcement purposes." 5 U.S.C. § 552(b)(7). An agency satisfies this requirement when it "establish[es] a rational nexus between [an] 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) (quoting Campbell v. Dep't of Justice , 164 F.3d 20, 32 (D.C. Cir. 1998) ). "[L]aw enforcement purposes" include both civil and criminal matters. Tax Analysts v. IRS , 294 F.3d 71, 77 (D.C. Cir. 2002). As the CFPB notes, "the very fact that the two transcripts are responsive to Frank LLP's FOIA request demonstrates that the transcripts were compiled for law enforcement purposes" because Frank "sought documents that the Bureau ‘relied upon’ in making a specific finding of fact in the Bureau's consent order with PRA, which resolved an enforcement action against PRA." Def.'s Mot., Dkt. 16 at 8 (citing Lazier Decl. ¶ 5, Ex. A, Dkt. 16-3; Dkt. 1, Ex. C).

Frank's main argument is that "[t]he CFPB's methods in questioning PRA's professional affiants do not amount to ‘techniques and procedures’ for purposes of Exemption 7(E) withholding, because the CFPB could not have employed any interviewing methods that are particularly unknown to the public." Pl.'s Opp'n & Cross-Mot., Dkt. 20 at 9. But decisions from other judges of this court show that investigative questioning can qualify as such a "technique" or "procedure." In Barouch v. United States Department of Justice , the court allowed the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to withhold portions of an ATF interview because ATF explained that the withheld information related to "questioning techniques used by the ATF agents and local law enforcement agents" and disclosure of "how law enforcement agents and officers question suspects and the tactics they use could lead to criminals using maneuvers to circumvent the law enforcement measures." 87 F.Supp.3d 10, 30 n.13 (D.D.C. 2015) (internal quotations omitted).² Releasing the information could have "permit[ted] individuals to prepare responses to counter these law enforcement strategies" and thereby "hinder[ed] future use of these tactics." Id. So too here: the redacted materials "contain the specific questions asked by Bureau investigators of two of PRA's affiants, including the specific information and types of information sought, the manner of questioning, the sequencing of questioning, and the manner and sequencing of follow-up questions on specific items of interest," and "[i]f entities were aware of this information, they could coach future witnesses in similar cases on how to avoid providing incriminating information, hindering the future use of these investigative techniques." Petersen Decl. ¶¶ 15, 18, Dkt. 16-2.³

Similarly, in Rosenberg v. United States Department of Immigration & Customs Enforcement , the court granted summary judgment to the FBI when it withheld a questionnaire prepared by an FBI special agent investigating allegations of obstruction of justice. 13 F.Supp.3d 92, 113–14 (D.D.C. 2014). The questionnaire contained "specific questions, the rationale for a particular question, and recommendations to be followed by [Special Agents] conducting the interrogation." Id. at 113 (quoting FBI declaration). The Court concluded that the questionnaire was properly withheld under exemption 7(E) because "[r]elease of the redacted questions would disclose what the FBI deems relevant to investigating obstruction of justice cases," because "the redacted information includes the FBI's rationale for one particular question as well as recommendations of follow-up questions," and because the FBI "logically and reasonably explained how releasing what the FBI deems relevant to obstruction of justice investigations would allow criminals to ‘adjust their responses and behavior to circumvent the law.’ " Id. at 114 (quoting FBI declaration).

Frank attempts to distinguish Rosenberg on the ground that the questionnaire "disclosed questions that the agency might have asked" and thus provided "a meticulous blueprint covering every possible question-and-answer eventuality." Pl.'s Opp'n & Cross-Mot., Dkt. 20 at 12 (emphasis in original). But first, it is not clear which way that cuts—the fact that the transcripts here contain actual instead of potential questions may actually reveal more about what the CFPB ultimately...