Prop. of the People, Inc. v. Dep't of Justice

539 F.Supp.3d 16

PROPERTY OF THE PEOPLE, INC., et al., Plaintiffs,

v.DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 17-1193 (JEB)

United States District Court, District of Columbia.

Signed April 29, 2021

Jeffrey Louis Light, Law Offices of Jeffrey Light, Washington, DC, for Plaintiffs.

Brenda A. Gonzalez-Horowitz, Michael A. Tilghman, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge While the media continues to cover investigations of former President Donald Trump's businesses, non-profit Plaintiffs in this Freedom of Information Act case hunt different game. They seek records discussing Trump's connection with a two-decades-old gambling investigation by the Federal Bureau of Investigation. After the Department of Justice withheld certain documents, Plaintiffs sued. In competing Motions for Summary Judgment, the parties now wrangle with a number of FOIA exemptions as applied to diverse document categories. To aid its decisionmaking, the Court completed its own in camera review, and it now delivers a miscellany of rulings: it will affirm the Government's nondisclosure of some records, order the release of others, and require some further segregability analysis on still more.

I. Background

Although extended by the COVID-19 pandemic, the procedural history of this case is not complicated. Plaintiffs — government-transparency organization Property of the People, investigative reporter Jason Leopold, and PhD candidate Ryan Shapiro — filed a FOIA request with the FBI on March 16, 2017, for records "mentioning or referring to" Donald John Trump from June 14, 1946, through June 15, 2015. See ECF No. 1 (Compl.), ¶¶ 1–3, 10–11. They also requested records relating to several FBI case files, which they believed contained documents referring to Trump by name. Id., ¶ 11. After acknowledging receipt of the request, DOJ issued a Glomar response, refusing to confirm or deny the existence of law-enforcement records responsive to Plaintiffs’ requests. See Property of the People v. DOJ, 310 F. Supp. 3d 57, 62–63 (D.D.C. 2018) ; ECF No. 12–1 (First Declaration of David M. Hardy), ¶ 8. An unsuccessful administrative appeal of that response prompted Plaintiffs to file this suit on June 18, 2017. See Compl., ¶ 14.

After this Court rejected both the propriety of Defendant's Glomar response and Plaintiffs’ cross-motion for summary judgment, Property of the People, 310 F. Supp. 3d at 73, the parties began a long exchange of documents and status reports drawn out by pandemic-related delays. All told, DOJ identified 4,205 responsive pages, releasing more than half that number (at least in part) to Plaintiffs. See ECF No. 55 (Def. MSJ) at 1. It withheld 1,554 pages in part and 988 pages in full, invoking FOIA Exemptions 3, 6, 7(A), 7(C), 7(D), and 7(E) in its most recent Motion for Summary Judgment. Id. at 1, 7–29. Narrowing the dispute, Plaintiffs in their latest Cross-Motion contest the applicability of those exemptions with respect to only 116 pages. See ECF No. 57 (Pl. MSJ & Opp.) at 7–30; ECF No. 62 (Pl. Reply) at 2–29

Following the completion of briefing, the Court, in an effort to better understand the withholdings at issue, ordered DOJ to submit clean and redacted copies of all disputed documents for in camera review. See Minute Order (2/24/21). Having now completed its review, the Court is ready to rule.

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, 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is "material" if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 ; 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. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (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).

FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Off. of the U.S. Trade Representative, 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. 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) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981) ). "FOIA expressly places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter de novo.’ " U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting 5 U.S.C. § 552(a)(4)(B) ).

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, 96 S.Ct. 1592, 48 L.Ed.2d 11 (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, 109 S.Ct. 1468.

A "veritable avalanche of FOIA-related precedent" guides this Court's determination of whether the Government has carried its burden of establishing that a given exemption applies. Ullah v. CIA, 435 F. Supp. 3d 177, 182 (D.D.C. 2020). In order to show that certain information is exempt from FOIA, "an agency may file ‘affidavits describing the material withheld and the manner in which it falls within the exemption claimed.’ " Bin Ali Jaber v. U.S. Dep't of Def., 293 F. Supp. 3d 218, 224 (D.D.C. 2018) (quoting King v. U.S. Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987) ). Ultimately, "when an agency seeks to withhold information, it must provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant." Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (quoting King, 830 F.2d at 219 ). "[A]n agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ " Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007) ).

Even where a particular exemption applies, FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt." 5 U.S.C. § 552(b). While DOJ is "entitled to a presumption that [it] complied with the obligation to disclose reasonably segregable material," Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013) (alteration in original) (citation omitted), this presumption of compliance does not obviate the Government's obligation to fully explain its decisions on segregability. See Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 261–62 (D.C. Cir. 1977). To do so, the agency must provide "a ‘detailed justification’ and not just ‘conclusory statements’ to demonstrate that all reasonably segregable information has been released." Valfells v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C. 2010) (quoting Mead Data, 566 F.2d at 261 ). "[R]easonable specificity" can be established through a "combination of the Vaughn index and [agency] affidavits." Johnson v. Exec. Off. for U.S. Att'ys, 310 F.3d 771, 776 (D.C. Cir. 2002) (internal quotation marks and citation omitted).

Here, Plaintiffs have challenged a bevy of DOJ's withholdings, justified by Exemptions 3, 6, 7(A), 7(C), 7(D), and 7(E). For clarity, the Court proceeds through each exemption seriatim , analyzing like documents together.

A. Exemption 3

Exemption 3 covers records "specifically exempted from disclosure by statute" provided that such statute either "(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3)(A). Defendant has cited this exemption in withholding two categories of documents: 1) "six (6) [ ]related documents concerning the production of confidential documents in response to a Federal Grand Jury subpoena" under Federal Rule of Criminal Procedure 6(e) ; and 2 ) "six (6) related documents seeking an order from a court authorizing limited disclosure of the [Title III] related information" under Title III of the Omnibus Crime Control...