100Reporters LLC v. U.S. Dep't of Justice, Civil Action No.: 14–1264 (RC)

• Decision Date: 13 June 2018
• Docket Number: Civil Action No.: 14–1264 (RC)
• Parties: 100REPORTERS LLC, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant, and Siemens Aktiengesellschaft, Theo Waigel, Defendant–Intervenors.
• Court: U.S. District Court — District of Columbia

316 F.Supp.3d 124

100REPORTERS LLC, Plaintiff,

v.UNITED STATES DEPARTMENT OF JUSTICE, Defendant,andSiemens Aktiengesellschaft, Theo Waigel, Defendant–Intervenors.

Civil Action No.: 14–1264 (RC)

United States District Court, District of Columbia.

Signed June 13, 2018

Laura Rose Handman, Patrick John Curran, Jr., Adam M. Shoemaker, Ronald G. London, Davis Wright Tremaine, LLP, Washington, DC, for Plaintiff.

John Cuong Truong, U.S. Attorney's Office for the District of Columbia, Peter Claude Sprung, U.S. Department of Justice, Washington, DC, for Defendant.

Raul F. Yanes, Davis, Polk & Wardwell, Geoffrey M. Sigler, Francis Joseph Warin, Jeffrey S. Rosenberg, Gibson, Dunn & Crutcher, LLP, Washington, DC, Gerard McCarthy, Pro Hac Vice, Michael Scheinkman, Pro Hac Vice, Paul Spagnoletti, Pro Hac Vice, Davis Polk & Wardwell LLP, New York, NY, for Defendant–Intervenors.

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFF'S CROSS–MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

This matter arises from a Foreign Corrupt Practices Act ("FCPA") investigation of Siemens Aktiengesellschaft ("Siemens") conducted by the United States Department of Justice ("DOJ") and Securities and Exchange Commission ("SEC"). As a result of the investigation, in 2008 Siemens pleaded guilty to violating the FCPA's internal controls and books and records provisions. The plea agreement imposed a large fine on Siemens and three subsidiaries, and it required Siemens to hire an independent compliance monitor to ensure that it implemented an effective corporate governance system and complied with all applicable anti-corruption laws and regulations.

Siemens hired Dr. Theodore Waigel (the "Monitor") to serve as its compliance monitor. Pursuant to his mandate under the plea agreement, the Monitor conducted a multi-year review of Siemens' compliance programs. Over four years he provided more than 150 recommendations to Siemens for ways to improve its compliance programs, and he submitted several written reports to DOJ, including work plans at the start of each year, summary reports at the end of each year, and status reports and other correspondence on an ongoing basis. Each year, he also certified that Siemens was in compliance with the plea agreement's terms.

In 2013, Plaintiff 100Reporters LLC, a non-profit dedicated to investigative journalism, submitted a Freedom of Information Act ("FOIA") request to the DOJ seeking records related to the monitorship. DOJ denied the request and an administrative appeal. In 2014, 100Reporters brought this FOIA action before the Court.

DOJ has produced redacted documents falling within the scope of 100Reporters' request, while withholding others in full under certain FOIA exemptions. 100Reporters objects to those withholdings. In 2016, DOJ and 100Reporters filed cross-motions for summary judgment, and this Court granted DOJ's motion in part and denied it in part, and it denied 100Reporters' motion. The Court's ruling ratified DOJ's withholdings under FOIA Exemption 4 and the attorney work product privilege incorporated into Exemption 5, and it directed DOJ to provide additional factual support for the other exemptions on which it relied, including a representative sample of documents for in camera review. Now before the Court are DOJ's renewed motion for summary judgment and 100Reporters' opposition. See generally Mem. P. & A. Supp. U.S. Dep't Justice's Renewed Mot. Summ. J. ("DOJ Mem."), ECF No. 83–2; Pl.'s Opp'n ("100Reporters Mem."), ECF No. 86.

For the reasons explained below, the Court finds that DOJ's Exemption 4 withholdings are overbroad, and that while DOJ has justified the withholding of certain information under Exemptions 5, 6, and 7(C), DOJ's withholdings under those Exemptions are also overbroad. The Court will therefore grant in part DOJ's motions for summary judgment with respect to the Exemptions, but will deny DOJ's motion for summary judgment with respect to its obligation to segregate and disclose non-exempt material. Finally, the Court will grant in part and deny in part 100Reporters' cross-motion for summary judgment.

II. BACKGROUND¹

In July 2013, 100Reporters submitted a FOIA request to DOJ for records related to Aktienengesellschaft, et al. , 1:08–cr–367–RJL (D.D.C.), the criminal prosecution of Siemens. See Def.'s Statement of Material Facts ("DOJ Statement") ¶ 1, ECF No. 83–1. In February 2014, 100Reporters narrowed its request to the following records:

• "Corporate Compliance Statements" that Siemens filed with DOJ under Siemens' plea agreement;

• Documents relating to the Monitor's evaluation of the effectiveness of Siemens' anticorruption compliance program;

• Documents relating to steps taken by the Monitor to confirm compliance by Siemens;

• Information, records, and facilities requested by the Monitor that fell within his mandate;

• The Monitor's work plans, reviews, and reports; and

• Disclosures made by Siemens to the Monitor concerning corrupt payments and related books, records, and internal controls violations.

DOJ Statement 4; Decl. of Suzanna Moberly ("Moberly Decl.") ¶ 9, ECF No. 59–3.

Months later, in July 2014, 100Reporters brought this suit seeking to compel the production of documents that are responsive to its request. See generally Compl., ECF No. 1. DOJ's Answer raised one affirmative defense—that the requested documents were exempt from disclosure under FOIA—and it relied on FOIA Exemption 4, Exemption 5, Exemption 6, Exemption 7(A), Exemption 7(C), and Exemption 7(D) in support of that defense. See DOJ Answer at 6, ECF No. 11.²

In 2015, during the pendency of the litigation, DOJ produced two sets of responsive materials to 100Reporters totaling two videos and approximately 500 pages of documents, many of which were redacted. See Moberly Decl. ¶ 19; see also Status Report & Proposed Briefing Schedule at 2, ECF No. 49 ("Federal Defendant provided Plaintiff with some of the documents previously withheld entirely, largely redacted on December 4, 2015."). DOJ continued to withhold in full six video presentations and 4,293 pages of documents. See Moberly Decl. ¶ 19. These materials are encompassed in: (1) four annual Reports prepared by the Monitor setting forth the Monitor's assessment of Siemens' compliance program and his recommendations for improvement of the same, and presentations and correspondence submitted about or in conjunction with the Monitor's reports and reviews; (2) four annual Work Plans prepared by the Monitor detailing the manner in which he intended to perform his reviews (some of which were attached as exhibits to the Monitor's annual reports), and associated correspondence, documents, and presentations; (3) Siemens training materials, internal presentations, and compliance policies; and (4) additional correspondence between the Monitor, DOJ, and SEC. See DOJ Statement ¶ 27; Decl. of Joel Kirsch ("Kirsch Decl.") ¶¶ 16, 22, 25, 27, ECF No. 58–2; Declaration of F. Joseph Warin ("Warin Decl.") ¶ 25(a)-(e), ECF No 57–2.

In March and April 2016, the parties filed cross-motions for summary judgment regarding relevant information that DOJ did not disclose. In their motions, the parties argued over whether DOJ was obligated to disclose four categories of information: (1) documents withheld pursuant to Exemption 4 as confidential commercial information; (2) documents withheld pursuant to Exemption 5's attorney work product privilege; (3) documents withheld pursuant to Exemption 5's deliberative process privilege; and (4) documents redacted pursuant to Exemptions 6 and 7(C) as records implicating the privacy interests of government employees, monitorship team members, Siemens employees, and third-party witnesses. See 100Reporters LLC v. DOJ , 248 F.Supp.3d 115, 133 (D.D.C. 2017). On March 31, 2017, this Court granted in part and denied in part DOJ's motion for summary judgment and denied 100Reporters' cross-motion. See id. at 167.

The Court granted summary judgment in favor of DOJ with regard to information withheld under Exemption 4 and information withheld under Exemption 5's attorney work product privilege. Id. at 145, 158. It held, however, that DOJ had failed to justify its withholdings under Exemption 5's deliberative process privilege, Exemption 6, and Exemption 7(C), and it denied DOJ's motion with respect to those Exemptions. Id. at 154, 165. It also held that DOJ's Amended Vaughn index³ and declarations were inadequate in certain respects and did not permit the Court to assess whether documents were properly withheld under the Exemption 5 deliberative process privilege, nor did they permit the Court to assess whether DOJ had disclosed all reasonably segregable, nonexempt material. Id. at 154, 166–67. In its discretion, the Court directed DOJ to provide supplemental submissions in support of its Exemption 5, deliberative process withholdings showing "(1) the nature of the specific deliberative process involved, (2) the function and significance of the document in that process, and (3) the nature of the decision-making authority vested in the document's author and recipient." Id. at 154 (quoting Nat'l Sec. Counselors v. CIA , 960 F.Supp.2d 101, 189 (D.D.C. 2013) ). It also directed DOJ to provide "one work plan and one annual report prepared by the Monitor, including all attachments to those two documents" for in camera review. Id. at 166.

DOJ has presented two new declarations and an "Amended Chronology of Events Supporting the Deliberative Process Privilege" ("Am. Chronology"), and it provided the Court with the Monitor's Year Three Work Plan, Year Three Report, and accompanying exhibits, all of which have been reviewed by the Court in camera. See Decl. of Mark F. Mendelsohn ("Mendelsohn Decl."), ECF No. 83–3; Decl. of Charles E. Duross ("Duross Decl."), ECF No. 83–4; Am. Chronology, ECF No. 91–1; DOJ Correspondence Regarding Ex Parte...