Cause of Action Inst. v. U.S. Dep't of Justice

• Decision Date: 06 April 2020
• Docket Number: Civil Action No. 18-2373 (ABJ)
• Citation: 453 F.Supp.3d 368
• Parties: CAUSE OF ACTION INSTITUTE, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — District of Columbia

453 F.Supp.3d 368

CAUSE OF ACTION INSTITUTE, Plaintiff,

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

Civil Action No. 18-2373 (ABJ)

United States District Court, District of Columbia.

Signed April 6, 2020

Lee A. Steven, Russel James Valvo, III, Ryan Patrick Mulvey, Cause of Action Institute, Arlington, VA, for Plaintiff.

Rebecca Marie Cutri-Kohart, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge The Cause of Action Institute ("COA" or "plaintiff") is a non-profit government oversight organization, Compl. [Dkt. # 1] ¶ 5, and in December of 2013, it submitted a request for documents to the Office of Information Policy ("OIP") of the United States Department of Justice ("DOJ"). Id. ¶ 7. On October 15, 2018, it filed this lawsuit under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq. (2012), claiming that DOJ impermissibly withheld responsive records, and that the FOIA guidance issued by OIP defining the term "record" is inconsistent with the statute. Compl. ¶¶ 34–54.

Defendant has moved for summary judgment, arguing that its guidance comports with FOIA and that it applied its guidance appropriately in redacting non-responsive information. Def.'s Mot. for Summ. J. [Dkt. # 19] ("Def.'s Mot."). Plaintiff opposed the motion and cross-moved for summary judgment. Pl.'s Cross-Mot. for Summ. J. [Dkt. # 21] ("Pl.'s Cross-Mot."). For the following reasons, the Court will grant in part and deny in part defendant's motion for summary judgment, and it will grant in part and deny in part plaintiff's cross-motion for summary judgment.

BACKGROUND

I. The AILA Decision

In 2016, the D.C. Circuit decided American Immigration Lawyers Association v. Executive Office for Immigration Review ("AILA "), 830 F.3d 667 (D.C. Cir. 2016). In that case, the American Immigration Lawyers Association submitted a request to the Executive Office for Immigration Review seeking disclosure of records related to complaints about the conduct of immigration judges. Id. at 669. The agency produced records but withheld certain information it deemed non-responsive within the otherwise responsive records. Id.

When the matter was appealed, the Court held that the FOIA "statute does not provide for withholding responsive but non-exempt records or for redacting nonexempt information within responsive records." Id. at 677. It ruled that "once an agency identifies a record it deems responsive to a FOIA request, the statute compels disclosure of the responsive record – i.e., as a unit – except insofar as the agency may redact information falling within a statutory exemption." Id. , citing 5 U.S.C. § 552 (a)(3)(A).

Applying a principle calling for the production of a "record" in its entirety raises the question of what constitutes a record, and whether a single document could be comprised of multiple records. But that question was not raised by the parties in AILA , and the Court said it found "no cause to examine the issue." Id. at 678. The Court of Appeals did observe, though, that the Act does not define the term, and that "agencies ... in effect define a ‘record’ when they undertake the process of identifying records that are responsive to a request." Id. It stated that it had "no occasion" to "consider the range of possible ways in which an agency might conceive of a ‘record,’ " but it noted that "in guidance to agencies on processing FOIA requests, the Department of Justice addressed the issue of documents that cover multiple, unrelated topics" and that its guidance provides "considerations for agencies to take into account when determining whether it is appropriate to divide such a document into discrete ‘records.’ "¹

Id. Finally, the Court added that it found "it difficult to believe that any reasonable understanding of a ‘record’ would permit withholding an individual sentence within a paragraph within an email on the ground that the sentence alone could be conceived of as a distinct, non-responsive ‘record.’ " Id. at 679.

II. DOJ's Office of Information Policy's Guidance on FOIA

The mission of DOJ's Office of Information Policy ("OIP") is to "encourage and oversee agency compliance with the Freedom of Information Act." Office of Information Policy: About the Office, https://www.justice.gov/oip/about-office (last visited, Feb. 5, 2020). To that end, OIP publishes guidance on FOIA to assist agencies in "understanding the many substantive and procedural requirements of the FOIA." Id.

OIP updated its guidance in the wake of the AILA decision, and one of the topics it has addressed is what constitutes a "record." Declaration of Vanessa R. Brinkmann [Dkt. # 19-2] ("Brinkmann Decl.") ¶ 13, citing Ex. I to Brinkmann Decl. [Dkt. # 19-2] ("OIP Guidance"). It sets out two principles to be followed when making that determination in response to a FOIA request: (1) "Be Guided by the Privacy Act's Definition of ‘Record’ "; and (2) "Link Records to Subject of Request." OIP Guidance at 2.

Under the first principle, OIP explains that "[a]gencies can use the definition of record found in the Privacy Act.... Thus, each ‘item, collection, or grouping of information’ on the topic of the request can be considered a distinct ‘record.’ " Id. , citing 5 U.S.C. § 552a(a)(4). It goes on to state that a " ‘record’ can potentially constitute an entire document, a single page of a multipage document, or an individual paragraph of a document." Id.

Under the second principle, OIP provides that:

The nature of a FOIA ‘record’ is defined by both the content of a document and the subject of the request. For example, if a document consists of a list of summaries of complaints against immigration judges organized by the name of each judge, and the subject of the FOIA request is ‘complaints against all immigration judges’ then the entire document is the ‘record’ for purposes of that FOIA request because the entire document is a ‘collection or grouping of information’ on the subject of the request.

Id. OIP's Guidance recognizes that such "distinctions are most easily made when the document can reasonable be broken into discrete units.... By contrast, if a document cannot be viewed as containing discrete ‘items or groupings’ of information on different topics then it must be treated as a single ‘record’ and the entirety must be processed for exemption applicability." Id.

III. Factual and Procedural Background

On December 24, 2013, plaintiff Cause of Action Institute sent a FOIA request to OIP seeking the following records, from January 21, 2009 to present:

1. All documents, including but not limited to email communications, referring or relating to Executive Order 13457, "Protecting American Taxpayers from Government Spending on Wasteful Earmarks."

2. All documents, including but not limited to email communications between and among any political appointee, White House liaison, congressional liaison, and/or any employee of the White House, referring or relating to any request to commit, obligate, or expend funds.

3. All documents evidencing the agency's decision to commit, obligate, or expend funds based upon a request from Congress or the White House.

Pl.'s FOIA Request, Ex. 1 to Compl. [Dkt. # 1-1] ("FOIA Request") at 1. OIP acknowledged receipt of the FOIA Request on February 3, 2014. Letter from OIP to COA, Ex. B to Brinkmann Decl. [Dkt. # 19-2]. OIP and COA agreed that the scope of the request would be "all communications between a Department political appointee and Members of Congress, their staff, or employees of the White House relating to grants of the Office of Justice Programs, Office on Violence Against Women, and Community Oriented Policing Services and records relating to Executive Order 13457." Brinkmann Decl. ¶ 5.

On September 14, 2017, OIP sent an interim response to plaintiff, indicating that as of that time, it had located five pages of material responsive to the FOIA Request, and that those pages would be withheld completely pursuant to FOIA Exemption 5. Sept. 14, 2017 Letter from OIP to COA, Ex. C to Brinkmann Decl. [Dkt. # 19-2]. Two weeks later, on September 29, 2017, OIP sent another interim response stating that an additional 873 pages were found, and 47 of those pages could be released fully. Sept. 29, 2017 Letter from OIP to COA, Ex. D to Brinkmann Decl. [Dkt. # 19-2]. Ten pages would be withheld under Exemption 5, and 816 pages had to be referred to other DOJ offices for review: the Office of Justice Programs, the Justice Management Division, and the Community Oriented Policing Services. Id. Those DOJ components responded to plaintiff directly. Brinkmann Decl. ¶ 5.

On January 30, 2018, OIP sent a final response, stating that it located 143 responsive pages. Thirty-two pages were produced fully while one page was released with redactions pursuant to Exemption 6. Letter from OIP to COA, Ex. E to Brinkmann Decl. [Dkt. # 19-2]. Seventy-one pages were withheld fully under Exemption 5, and thirty-four pages were referred to other components of DOJ to respond directly to plaintiff. Id. OIP also stated: "Please be advised that these pages also contained non-responsive records, which we have marked accordingly." Id.

In total, OIP identified 1,021 pages responsive to the FOIA request. Brinkmann Decl. ¶ 5. Defendant withheld information from these pages pursuant to Exemptions 5 and 6. Id. Other information was redacted because defendant deemed it to be a non-responsive. Id. ¶ 10.

On October 14, 2018, plaintiff filed its complaint against OIP, challenging OIP's redactions in connection with three groups of records:

• A letter dated January 4, 2011, from then-Assistant Attorney General Ronald Weich to then-Chairman of the U.S. House Committee on the Judiciary John Conyers, transmitting responses to "questions for the record" ("QFRs") arising from an appearance of then-Attorney General Eric Holder before the committee on May 13, 2010. The letter was released in full, but portions of the attachment were withheld by

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