Elec. Privacy Info. Ctr. v. U.S. Dep't of Justice, Civil Action No. 19-810 (RBW)

• Citation: 490 F.Supp.3d 246
• Decision Date: 30 September 2020
• Docket Number: Civil Action No. 19-957 (RBW),Civil Action No. 19-810 (RBW)
• Parties: ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant. Jason Leopold & Buzzfeed, Inc., Plaintiffs, v. United States Department of Justice, et al., Defendants.
• Court: U.S. District Court — District of Columbia

490 F.Supp.3d 246

ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,

v.UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

Jason Leopold & Buzzfeed, Inc., Plaintiffs,

v.United States Department of Justice, et al., Defendants.

Civil Action No. 19-810 (RBW)

Civil Action No. 19-957 (RBW)

United States District Court, District of Columbia.

Signed September 30, 2020

Alan Jay Butler, Marc Rotenberg, John L. Davisson, Electronic Privacy Information Center, Washington, DC, For Plaintiff Electronic Privacy Information Center.

Joshua Hart Burday, Matthew Topic, Loevy & Loevy, Chicago, IL, For Plaintiff Jason Leopold, Buzzfeed, Inc.

Courtney Danielle Enlow, Elizabeth J. Shapiro, U.S. Department of Justice, Washington, DC, For Defendant United States Department of Justice.

Courtney Danielle Enlow, U.S. Department of Justice, Washington, DC, For Defendant DOJ Office of Attorney General, DOJ Deputy Attorney General, DOJ Office of Special Counsel.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The plaintiffs in the above-captioned matters, Jason Leopold and Buzzfeed, Inc. (the "Leopold plaintiffs") and the Electronic Privacy Information Center ("EPIC"), pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seek, inter alia, the release of an unredacted version of the report prepared by Special Counsel Robert S. Mueller III ("Special Counsel Mueller") regarding his investigation into Russian interference in the 2016 United States presidential election (the "Mueller Report"). See Complaint ("Compl.") ¶¶ 2, 43, Elec. Privacy Info. Ctr. v. U.S. Dep't of Justice, Civ. Action No. 19-810 ("EPIC Compl."); Compl. ¶ 1, Leopold v. U.S. Dep't of Justice, Civ. Action No. 19-957 ("Leopold Pls.’ Compl."). On June 3, 2019, the United States Department of Justice (the "Department") filed its motion for summary judgment. See Department of Justice's Motion for Summary Judgment in Leopold v. Department of Justice and Partial Summary Judgment in Electronic Privacy Information Center v. Department of Justice ("Def.’s Mot."). Thereafter, the plaintiffs filed their cross-motions for summary judgment. See Plaintiff's Combined Opposition to Defendant's Motion for Partial Summary Judgment, Cross-Motion for Partial Summary Judgment, and Motion for In Camera Review of the "Mueller Report" ("EPIC's Mot."); Plaintiffs Jason Leopold's and Buzzfeed Inc.’s Motion for Summary Judgment ("Leopold Pls.’ Mot.").

On March 5, 2020, the Court issued a Memorandum Opinion, in which it concluded that "the actions of Attorney General [William] Barr and his representations about the Mueller Report preclude the Court's acceptance of the validity of the Department's redactions without its independent verification" and ordered the Department to submit the unredacted version of the Mueller Report to the Court for in camera review. Elec. Privacy Info. Ctr. v. U.S. Dep't of Justice, 442 F. Supp. 3d 37, 52 (D.D.C. 2020) ; see also Order at 2 (Mar. 5, 2020), ECF No. 112.

On March 30, 2020, the Department submitted to the Court the unredacted version of the Mueller Report. See Defendant's Notice of Submission of Documents for In Camera Review at 1–2. After reviewing the unredacted version of the Mueller Report, the Court ordered the Department to "appear before the Court for an ex parte hearing to address the Court's questions regarding certain redactions of the Mueller Report." Order at 2 (June 8, 2020), ECF No. 120. And, "[t]o accord the Department knowledge of the questions that the Court ha[d] regarding some of the redactions prior to the ex parte hearing, the Court [ ] prepared an Excel spreadsheet that catalogues these questions," and "[t]o the extent that the Department is able to respond to the Court's questions in writing," the Court ordered the Department to file "under seal its responses to the Court's questions." Order at 2 (July 6, 2020), ECF No. 123. On July 21, 2020, the Department timely submitted its responses to the Court's questions as well as a declaration from Vanessa Brinkmann, Senior Counsel in the Office of Information Policy at the Department. See Defendant's Notice of Sealed Submission of Responses to Court Order at 1–2; id., Exhibit ("Ex.") 1 (Sealed Third Declaration of Vanessa R. Brinkmann (redacted)) ("Redacted Brinkmann 3d Decl."). Thereafter, on September 15, 2020, the Court held an ex parte hearing regarding the Department's claimed exemptions, after which the Department submitted an additional declaration from Brinkmann that addresses questions posed by the Court during the hearing. See Defendant's Notice of Filing Public Version of Declaration in Response to Court's Questions During Ex Parte Hearing, Ex. 1 (Fourth Declaration of Vanessa R. Brinkmann (redacted)) ("Redacted Brinkmann 4th Decl.").

Having completed its in camera review of the unredacted version of the Mueller Report, and upon careful consideration of the parties’ submissions,¹ the Court now concludes for the following reasons that it must grant in part and deny in part the Department's motion for summary judgment and grant in part and deny the balance of the plaintiffs’ cross-motions for summary judgment.²

I. STANDARD OF REVIEW

"FOIA cases typically are resolved on a motion for summary judgment." Ortiz v. U.S. Dep't of Justice, 67 F. Supp. 3d 109, 116 (D.D.C. 2014) (citation omitted). The "FOIA requires federal agencies to disclose, upon request, broad classes of agency records unless the records are covered by the statute's exemptions." Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (citing 5 U.S.C. § 552(a)(3)(A), (b) ); see also Wash. Post Co. v. U.S. Dep't of Justice, 863 F.2d 96, 101 (D.C. Cir. 1988) (citation omitted) ("[The] FOIA is to be interpreted with a presumption favoring disclosure and exemptions are to be construed narrowly."). In a FOIA action, the defendant agency has "[the] burden of demonstrating that the withheld documents are exempt from disclosure." Boyd v. U.S. Dep't of Justice, 475 F.3d 381, 385 (D.C. Cir. 2007). This burden "cannot be met by mere conclusory statements." Wash. Post Co., 863 F.2d at 101 (citation omitted). "The agency may meet this burden by filing affidavits describing the material withheld and the manner in which it falls within the exemption claimed," King v. U.S. Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987) (citations omitted), and by "show[ing] how release of the particular material would have the adverse consequence that the [FOIA] seeks to guard against," Wash. Post Co., 863 F.2d at 101 (citation omitted).

Moreover, courts will grant summary judgment to the government in a FOIA case only if the agency can prove "that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester." Friends of Blackwater v. U.S. Dep't of Interior, 391 F. Supp. 2d 115, 119 (D.D.C. 2005) (quoting Greenberg v. U.S. Dep't of Treasury, 10 F. Supp. 2d 3, 11 (D.D.C. 1998) ). Thus, in a lawsuit brought to compel the production of documents under the FOIA, "an agency is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced ... or is wholly[, or partially,] exempt [from disclosure].’ " Students Against Genocide, 257 F.3d at 833 (omission in original) (quoting Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978) ). However, "[t]he burden upon the requester is merely ‘to establish the absence of material factual issues before a summary disposition of the case could permissibly occur.’ " Pub. Citizen Health Research Grp. v. Food & Drug Admin., 185 F.3d 898, 904–05 (D.C. Cir. 1999) (quoting Nat'l Ass'n of Gov't Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978) ).

II. ANALYSIS

As an initial matter, the Court notes that since the issuance of its March 5, 2020 Memorandum Opinion, the Department has released a substantial amount of information that was previously withheld from public disclosure. Compare Brinkmann 1st Decl., Ex. D (Report On The Investigation Into Russian Interference In The 2016 Presidential Election), with Defendant's Notice of Reprocessed Report, Ex. 1 (Report On The Investigation Into Russian Interference In The 2016 Presidential Election, Volume I of II), and id., Ex. 2 (Report On The Investigation Into Russian Interference In The 2016 Presidential Election, Volume II of II); see also Defendant's Notice of Filing Unsealed Submission of Certain Responses to Court Order, Ex. A (Redacted Version of the Spreadsheet).³

However, the Department continues to withhold information in the Mueller Report pursuant to Exemptions 3, 5, 6, 7(A), 7(C), and 7(E) of the FOIA. See Def.’s Mem. at 2. The Department contends that

the disclosure of the withheld information would reveal: (1) grand jury information protected by Rule 6(e) of the Federal Rule of Criminal Procedure and Exemption 3; (2) intelligence sources and methods protected by the National Security Act and Exemption 3; (3) privacy information protected by Exemptions 6 and 7(C); (4) deliberative information regarding charging decisions protected by Exemption 5; and (5) law enforcement information protected by Exemptions 7(A) [ ] and 7(E).

Id. The Court will address each of the exemptions asserted by the Department in turn.

A. Exemption 3

Exemption 3 of the FOIA excludes from compelled disclosure matters that are "specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3). Under this exemption, the Department need only show that the statute claimed qualifies as a withholding statute and "that the withheld material falls within the statute." Larson v. U.S. Dep't of State, 565 F.3d 857, 865 (D.C. Cir. 2009). A statute falls under the purview of Exemption 3 only if it "requires that the matters be withheld from the public in such a manner as to leave no discretion on the...