Am. Ctr. for Law & Justice v. U.S. Dep't of Justice, Case No. 17-cv-01866 (APM)

• Decision Date: 19 September 2018
• Docket Number: Case No. 17-cv-01866 (APM)
• Citation: 334 F.Supp.3d 13
• Parties: AMERICAN CENTER FOR LAW AND JUSTICE, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — District of Columbia

334 F.Supp.3d 13

AMERICAN CENTER FOR LAW AND JUSTICE, Plaintiff,

v.U.S. DEPARTMENT OF JUSTICE, Defendant.

Case No. 17-cv-01866 (APM)

United States District Court, District of Columbia.

Signed September 19, 2018

Benjamin Paul Sisney, Stuart J. Roth, American Center for Law & Justice, Washington, DC, Abigail A. Southerland, American Center for Law & Justice, Franklin, TN, for Plaintiff.

Marsha Wellknown Yee, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

Amit P. Mehta, United States District Judge

I. INTRODUCTION

Four months before the 2016 presidential election, on June 27, 2016, former President Bill Clinton met with then Attorney General Loretta Lynch on board an airplane parked on the tarmac at a Phoenix airport. The meeting prompted speculation and attacks from critics as to whether the two had discussed the Department of Justice's investigation into Democratic nominee and former Secretary of State Hillary Clinton's email practices.

This Freedom of Information Act ("FOIA") suit concerns records generated in the wake of the June 2016 meeting. Plaintiff American Center for Law and Justice submitted a FOIA request to the FBI seeking a variety of records related to the Clinton-Lynch meeting. What remains of this case is quite narrow. At issue are Defendant Department of Justice's redaction of two records under FOIA Exemptions 6 and 7(C) and Exemption 5, respectively. For the reasons that follow, the court concludes that the redactions are proper and enters judgment in favor of Defendant.

II. BACKGROUND

A. Factual Background

On July 15, 2016, Plaintiff American Center for Law and Justice submitted a FOIA request to the Federal Bureau of Investigation ("FBI"), a component of Defendant Department of Justice. Compl., ECF No. 1, Ex. A, ECF No. 1-1. Plaintiff sought "any and all records pertaining to Attorney General Loretta Lynch's meeting with former President Bill Clinton on June 27, 2016, which occurred on her airplane at the Sky Harbor International Airport in Phoenix, Arizona." Id. at 1, 9, 17. On October 21, 2016, the FBI answered Plaintiff's FOIA request, reporting that it had not located any responsive records. Compl., Ex. C, ECF No. 1-3.

On August 10, 2017, however, the FBI reopened Plaintiff's FOIA request and informed Plaintiff that it had found potentially responsive records. Def.'s Mot. for Summ. J., ECF No. 14 [hereinafter Def.'s Mot.], Decl. of David M. Hardy, ECF No. 14-2 [hereinafter Hardy Decl.], ¶ 13. One month later, Plaintiff filed the action before the court, alleging that Defendant had improperly withheld records by failing to respond to Plaintiff's FOIA request. See generally Compl. On November 30, 2017, Defendant produced 29 pages of responsive records to Plaintiff. Joint Status Report, ECF No. 12, at 1. While the FBI released some pages in full, it withheld information found on other pages pursuant to FOIA Exemptions 5, 6, and 7(C). Id. ; Hardy Decl. ¶ 16.

B. Procedural Background

Following Defendant's production, both parties moved for summary judgment. Defendant argued that the FBI had conducted an adequate search and that its withholdings were proper. See generally Def.'s Mot. at 1. In support of its motion, Defendant submitted a declaration from David M. Hardy, the Section Chief of the FBI's Record/Information Dissemination Section. Hardy Decl. ¶ 1. Hardy described the FBI's searches for responsive records, id. ¶¶ 17–21, and the FBI's justifications for its withholdings, id. ¶¶ 22–48.

Plaintiff challenged the adequacy of the agency's search and several of Defendant's withholdings. See Pl.'s Cross-Mot. for Summ. J. & Mem. in Opp'n to Def.'s Mot., ECF No. 16 [hereinafter Pl.'s Mot.], at 5–14. Specifically, Plaintiff argued that the FBI improperly asserted Exemptions 6 and 7(C) to withhold FBI employees' names and contact information in two pages of released emails. See id. at 7–12 (citing Def.'s Mot., Hardy Decl., Ex. H, ECF No. 14-2 [hereinafter Disclosures], at FBI-7, FBI-12). Additionally, Plaintiff argued that the FBI improperly asserted Exemption 5 to withhold talking points contained within released emails. See id. at 7, 12–14 (citing Disclosures at FBI-2–3, FBI-23–24). Defendant subsequently conducted additional searches and released 18 additional pages, prompting Plaintiff to drop its challenge to the adequacy of the search. Joint Status Report, ECF No. 21 [hereinafter JSR], at 1–2; Def.'s Reply in Further Supp. of Def.'s Mot. & Opp'n to Pl.'s Cross-Mot. for Summ. J., ECF No. 22 [hereinafter Def.'s Reply], Third Decl. of David M. Hardy, ECF No. 22-2 [hereinafter Third Hardy Decl.], ¶¶ 2, 4–5. Plaintiff also dropped one of its initial claims regarding a withholding made under Exemptions 6 and 7(C), and it did not challenge any of the FBI's new withholdings. Pl.'s Reply in Supp. of Cross-Mot., ECF No. 24 [hereinafter Pl.'s Reply], at 1–2.

What remains of this dispute is quite limited. The parties' cross-motions concern only redactions of two disclosed records—one withholding under Exemptions 6 and 7(C) and one under Exemption 5.

III. LEGAL STANDARD

Most FOIA cases are properly resolved on motions for summary judgment. Brayton v. Office of the U.S. Trade Representative , 641 F.3d 521, 527 (D.C. Cir. 2011). 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). A dispute is "genuine" only if a reasonable fact-finder could find for the nonmoving party, and a fact is "material" only if it is capable of affecting the outcome of litigation. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

FOIA "requires federal agencies to disclose information to the public upon reasonable request unless the records at issue fall within specifically delineated exemptions." Reporters Comm. for Freedom of Press v. FBI , 877 F.3d 399, 401 (D.C. Cir. 2017) (internal quotation marks omitted). To that end, when someone challenges an agency withholding, "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) ).

To prevail in a FOIA action, an agency must demonstrate the adequacy of its search for relevant documents and show that the withheld material falls within one of nine statutory exemptions. Cable News Network, Inc. v. FBI , 293 F.Supp.3d 59, 68 (D.D.C. 2018). Further, "[e]ven when an exemption applies, the agency is obligated to disclose ‘[a]ny reasonably segregable portion of a record’ after removing the exempt material." Bartko v. U.S. Dep't of Justice , 898 F.3d 51, 62 (D.C. Cir. 2018) (second alteration in original) (quoting 5 U.S.C. § 552(b) ). To satisfy its burden, an agency may "submit[ ] affidavits that ‘describe the justification 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.’ " Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice , 746 F.3d 1082, 1088 (D.C. Cir. 2014) (quoting Larson v. Dep't of State , 565 F.3d 857, 862 (D.C. Cir. 2009) ); see also SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (stating that agency affidavits must be "relatively detailed and non-conclusory, and submitted in good faith" (cleaned up) ).

IV. DISCUSSION

As noted, the parties' dispute relates to two withholdings. See Pl.'s Reply at 1–2. The first concerns Defendant's redaction of the names of three recipients of an email under Exemptions 6 and 7(C). See Disclosures at FBI-12. The second is to Defendant's redaction of media talking points circulated by the director of DOJ's Office of Public Affairs pursuant to Exemption 5. The talking points appear twice in the record. See id. at FBI-2–3, FBI-23–24.

A. Exemptions 6 and 7(C)

The court begins with Plaintiff's challenge to Defendant's withholding of names of three FBI employees who received an email forwarded by Shirlethia Franklin in the Office of the Attorney General regarding the scheduling of a conference call about the Clinton-Lynch meeting. See Disclosures at FBI-12. Defendant's declarant, Hardy, states that the redacted names are those of "FBI Special Agents ... and support personnel who were responsible for receiving, reviewing, analyzing, supervising and/or conducting the day-to-day operations of the FBI reflected in the responsive documents." Hardy Decl. ¶ 30.

Defendant withheld the names pursuant to Exemptions 6 and Exemption 7(C), id. , which both concern the privacy interests of individuals identified in agency records, Beck v. Dep't of Justice , 997 F.2d 1489, 1492 (D.C. Cir. 1993). Under Exemption 6, agencies may withhold "personnel and medical files and similar files" if disclosure "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). By comparison, Exemption 7(C) contains "broader" privacy language. See Reporters Comm. for Freedom of Press , 489 U.S. at 756, 109 S.Ct. 1468. An agency may withhold under Exemption 7(C) "records or information compiled for law enforcement purposes" if the disclosure of that information "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). Therefore, Exemption 7(C) "establishes a lower bar for withholding material" than Exemption 6. ACLU v. U.S. Dep't of Justice , 655 F.3d 1, 6 (D.C. Cir. 2011). Courts tasked with evaluating withholdings made pursuant to both statutory exemptions generally look first to the agency's justification under Exemption 7(C), because information properly withheld under Exemption 7(C) would also be covered by Exemption...