The Reporters Comm. for Freedom of the Press v . Fed. Bureau of Investigation

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THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, et al., Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

CIVIL Nos. 15-1392 (RJL), (18-345)

United States District Court, District of Columbia

June 3, 2022

MEMORANDUM OPINION [DKTS. #63, #64]

RICHARD J. LEON UNITED STATES DISTRICT JUDGE

Plaintiffs Reporters Committee for Freedom of the Press (“RCFP”) and the Associated Press (“AP”) (collectively, “plaintiffs”) sued the Federal Bureau of Investigation (“FBI”) and the U.S. Department of Justice (“DOJ”) (collectively, “defendants” or “the Government”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to compel defendants to release records concerning the FBI's alleged practice of impersonating members of the news media. After this Court adjudicated cross-motions for summary judgment in that suit and while the decision granting summary judgment in favor of defendants was on appeal, RCFP filed a second suit against defendants regarding additional FOIA requests for similar but distinct records. Our Circuit Court remanded the first suit, and I consolidated the two actions. I again granted summary judgment in favor of defendants. Plaintiffs appealed, and our Circuit Court affirmed in part reversed in part, and dismissed in part. Only a narrow issue as to one document remains: whether the Government can demonstrate that it properly withheld under Exemption 5-the deliberative-process privilege-a draft of the September 2016 Office of Inspector General (“OIG”) Report because it reasonably foresees that its disclosure would harm its internal deliberations. For the third time, the parties have cross-moved for summary judgment. See Defs.' Mot. for Summ. J. (“Defs.' MSJ”) [Dkt. 63]; Pls.' Cross-Mot. for Summ. J. (“Pls.' MS J”) [Dkt 64].

Upon consideration of the pleadings, relevant law, and the entire record herein, the defendants' motion is GRANTED and the plaintiffs' motion is DENIED.

FACTUAL AND PROCEDURAL BACKGROUND

Because this is the third time the parties' dispute is before this Court, the background of this case already has been recounted and I need not repeat the facts at length. See Reporters Comm, for Freedom of the Press v. Fed. Bureau of Investigation, 236 F.Supp.3d 268 (D.D.C. 2017); Reporters Comm, for Freedom of the Press v. Fed. Bureau of Investigation, F.Supp.3d, 2020 WL 1324397 (D.D.C. Mar. 20, 2020).

Briefly, in June 2007, law enforcement investigated a series of anonymous bomb threats at Timberline High School near Seattle, Washington and ultimately identified the person responsible for the threats. See Reporters Comm., 2020 WL 1324397 at *1. After documents surfaced in October 2014 showing that the FBI had identified the person responsible by posing as an AP reporter and sending a website link for a fake news article to a social media account associated with the threats, plaintiffs sent four FOIA requests to the FBI over the course of six years seeking records related to the FBI's alleged practice of impersonating members of the news media in criminal investigations. Id.

After the FBI failed to comply with the first set of requests, RCFP and AP filed suit. Id. at *2. The FBI then completed a search and released (and withheld) various records. Id. I granted summary judgment to defendants. Id.', see also Reporters Comm., 236 F.Supp.3d at 280. Plaintiffs appealed only as to the adequacy of the FBI's search. Reporters Comm., 2020 WL 1324397 at *2. Our Circuit Court reversed and remanded, identifying three deficiencies in the FBI's search. Id.', see also Reporters Comm, for Freedom of the Press v. Fed. Bureau of Investigation (“RCFP I”), 877 F.3d 399 (D.C. Cir. 2017).

The FBI again failed to comply with a second set of requests, prompting the second suit. Reporters Comm., 2020 WL 1324397 at *3. On remand, the FBI conducted an additional search on the first requests and a search on the second requests. Id. I again granted summary judgment in favor of defendants. Id. at *12. Plaintiffs appealed, challenging this Court's determinations that six categories of documents “were exempt from release because they were protected by the deliberative process privilege” and that “release of those documents would foreseeably ham the interests protected by the privilege.” Reporters Comm, for Freedom of the Press v. Fed. Bureau of Investigation (“RCFP II”), 3 F.4th 350, 361 (D.C. Cir. 2021).

Our Circuit Court affirmed in part, reversed in part, and dismissed in part. Id. at 372. It affirmed that “[t]he government properly withheld the emails in which FBI leadership deliberated about appropriate responses to media and legislative pressure to alter the FBI's undercover tactics, as well as internal conversations about the implications of changing their undercover practices going forward.” Id. at 357. “But, ” the Circuit held, “the government did not satisfy its burden to show” that the disclosure of certain documents-namely, a draft OIG report, Factual Accuracy Comments, and draft PowerPoint slides-“would cause foreseeable harm.” Id.', see also id. at 372. Since our Circuit Court's decision, defendants voluntarily released the Factual Accuracy Comments and draft PowerPoint slides. See Defs.' MSJ at 8. Defendants also released certain portions of the draft OIG report that were quoted in the Factual Accuracy Comments. See Defs.' Reply-Response in Support of Mot. for Summ. J. and in Opposition to Pls.' Mot. for Summ. J. (“Defs.' Reply-Response”) [Dkt. 66] at 1. Thus, only portions of the draft OIG report remain at issue. The parties' cross-motions for summary judgment on that question are now before this Court.

STANDARD OF REVIEW

“Courts review an agency's response to a FOIA request de novo ... and FOIA cases typically and appropriately are decided on motions for summary judgment.” Campbell v. U.S. Dep't of Justice, 133 F.Supp.3d 58, 63 (D.D.C. 2015) (internal quotation marks omitted). A moving party is entitled to summary judgment where “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).

ANALYSIS

“To carry its burden at summary judgment, the government must demonstrate that (A) the materials at issue are covered by the deliberative process privilege, and (B) it is reasonably foreseeable that release of those materials would cause harm to an interest protected by that privilege.” RCFPII, 3 F.4th at 361 (citing Machado Amadis v. U.S. Dep't of State, 971 F.3d 364, 370 (D.C. Cir. 2020); 5 U.S.C. § 552(a)(8)(A)(i)(I)). Here, the first prong has already been met-our Circuit Court agreed that the draft report falls within the deliberative-process privilege-so only the second is relevant to this Court's inquiry on remand. “In the context of withholdings made under the deliberative process privilege, the foreseeability requirement means that agencies must concretely explain how disclosure ‘would'-not ‘could'-adversely impair internal deliberations.” RCFPII, 3 F.4th at 36970 (quoting Machado Amadis, 971 F.3d at 371). “[W]hat is needed is a focused and concrete demonstration of why disclosure of the particular type of material at issue will, in the specific context of the agency action at issue, actually impede those same agency deliberations going forward.” RCFP II, 3 F.4th at 370.

On appeal, our Circuit Court determined on the prior record that the Government had not made this showing to justify its withholding of the draft OIG report. It contrasted the prior record in this case with the “thoroughgoing and detailed pages of explanation as to the importance and deliberative value of the specific information in those records in the particular decisional context in which they arose” in Machado Amadis. RCFP II, 3 F.4th at 371. There, the Office of Information Policy (“OIP”) “reasonably foresaw that disclosure [of fields for recommendations, discussion, and search notes in forms used to adjudicate FOIA appeals] would harm an interest protected by the deliberative-process privilege.” Machado Amadis, 971 F.3d at 371. In this case, however, our Circuit Court held that the Government's “showing of harm ... f[ell] short” by “fail[ing] to ‘specifically focus[]' its foreseeable harm demonstration ‘on the information at issue in [the documents] under review.'” RCFP II, 3 F.4th at 369-70 (quoting Machado Amadis, 971 F.3d at 371).

The parties dispute whether the Government's supplemental declarations accompanying its summary-judgment motion correct the deficiencies identified by our Circuit Court on the prior record. In the Government's view, supplemental declarations from DOJ's OIG and the FBI “thoroughly detail the harm to agency decisionmaking, factfinding, and credibility from release of OIG's preliminary assessments in its draft reports” and “describe the reasonably foreseeable harm from disclosure by linking the asserted harm to the withheld information in concrete terms.” Defs.' MSJ at 1. Plaintiffs counter that the Government “ha[s] not-and indeed cannot-justify [its] continued withholding of the Draft Report” because it “cannot demonstrate, in a ‘focused and concrete' way, that harm would flow from disclosure of the Draft Report.” Pls.' MSJ at 2-3. Unfortunately for plaintiffs, I agree with defendants that the Government, through its supplemental declarations, has satisfied the required foreseeable harm showing.^[1] How so?

The supplemental declarations' descriptions detail the context of the agency action at issue by outlining the process through which OIG conducts a review of a DOJ component and explaining how that review led to the draft (and, ultimately, the final) report on the FBI's practices and operations. And the Government's declarations demonstrate why disclosure of the draft resulting from that process would...