Elec. Privacy Info. Ctr. v. U.S. Dep't of Justice

• Decision Date: 30 November 2021
• Docket Number: No. 20-5364,20-5364
• Citation: 18 F.4th 712
• Parties: ELECTRONIC PRIVACY INFORMATION CENTER, Appellee Jason Leopold and BuzzFeed, Inc., Appellants v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

18 F.4th 712

ELECTRONIC PRIVACY INFORMATION CENTER, AppelleeJason Leopold and BuzzFeed, Inc., Appellants

v.UNITED STATES DEPARTMENT OF JUSTICE, et al., Appellees

No. 20-5364

United States Court of Appeals, District of Columbia Circuit.

Argued October 13, 2021

Decided November 30, 2021

Matthew V. Topic argued the cause and filed the briefs for appellants.

Casen B. Ross, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Brian M. Boynton, Acting Assistant Attorney General, and Sharon Swingle, Attorney.

Before: Henderson and Tatel, Circuit Judges, and Edwards, Senior Circuit Judge.

Karen LeCraft Henderson, Circuit Judge:

Jason Leopold and BuzzFeed, Inc. (together, BuzzFeed), a media outlet employing Leopold as a reporter, sued the United States Department of Justice (DOJ) pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. BuzzFeed seeks disclosure of an unredacted version of the report prepared by Special Counsel Robert S. Mueller III on his investigation into Russian interference in the 2016 United States presidential election (Mueller Report).¹ FOIA provides exemptions permitting an agency to withhold from disclosure certain categories of information it would otherwise be statutorily required to disclose. DOJ justified its redactions using several of these exemptions.

The parties filed cross-motions for summary judgment, which the district court granted in part and denied in part, permitting most of DOJ's redactions. BuzzFeed challenges only one aspect of its ruling in this appeal: its grant of summary judgment to DOJ with respect to information redacted pursuant to FOIA Exemption 7(C), 5 U.S.C. § 552(b)(7)(C), and relating to individuals investigated but not charged by the Special Counsel. Exemption 7(C) permits the withholding of law enforcement records which, if disclosed, "could reasonably be expected to constitute an unwarranted invasion of personal privacy." Id. In granting summary judgment to DOJ, the district court determined that the privacy interests of the individuals whose information DOJ withheld under the exemption were not outweighed by the public's interest in disclosure of the redacted information.

We agree but only with respect to redacted passages containing personally identifying facts about individuals that are not disclosed elsewhere in the Report and would be highly stigmatizing to the individuals’ reputations. We disagree, however, regarding redacted passages that primarily show how the Special Counsel interpreted relevant law and applied it to already public facts available elsewhere in the Report in reaching individual declination decisions. We determine after our own in camera review of the Report that these passages show only how the government reached its declination decisions and do not contain new facts or stigmatizing material. In so concluding, we follow our pronouncement that "[m]atters of substantive law enforcement policy are properly the subject of public concern" and are "a sufficient reason for disclosure independent of any impropriety."

Citizens for Resp. & Ethics in Wash. v. Dep't of Just. (CREW I ), 746 F.3d 1082, 1095 (D.C. Cir. 2014) (citation omitted). Accordingly, we affirm in part and reverse in part.

I.

We begin with a brief history of the circumstances surrounding the commencement of Special Counsel Mueller's investigation and the release of his Report. Because the district court ably depicted this history, which the parties do not dispute, we need not recount it at length here. See Elec. Priv. Info. Ctr. v. Dep't of Just. (EPIC I ), 442 F. Supp. 3d 37, 40–46 (D.D.C. 2020).

In May 2017, then-Acting Attorney General Rod J. Rosenstein appointed Special Counsel Mueller to investigate Russian interference in the 2016 presidential election and to determine whether any individuals associated with President Donald Trump's campaign were linked to or coordinated with the Russian government. Id. at 40–41. Nearly two years later, in March 2019, Special Counsel Mueller concluded his investigation and provided Attorney General William Barr with a report detailing his conclusions. Id. at 41.

After reviewing the Report, Attorney General Barr advised the Congress of "the principal conclusions reached by Special Counsel [Mueller]" but did not immediately provide it with either an unredacted or a redacted version of the Report. Id. (alteration in original). The Attorney General asserted that the investigation culminating in the Mueller Report "did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence" the 2016 presidential election. Id. He stated further that the Mueller Report concluded that the evidence developed during the investigation was not sufficient to establish that President Trump obstructed justice. Id. at 41–42. Attorney General Barr also announced his intention to begin the process of determining what information in the Report was suitable for public release. Id. at 42. Shortly thereafter, Special Counsel Mueller advised the Attorney General by letter of his concerns about the latter's public characterization of the Report, which he argued "did not fully capture the context, nature, and substance of ... [his] Office's work and conclusions" and created "public confusion" about the results of the investigation. Id. The Attorney General responded with yet another letter to the Congress maintaining that his initial communication was merely a summary of the Mueller Report's main conclusions and "did not purport to be[ ] an exhaustive recounting" of the investigation or the Report. Id.

A few weeks later, Attorney General Barr held a press conference at which he repeated the conclusions expressed in his first communication to the Congress—namely that the Trump campaign did not coordinate, conspire or collude with the Russian government in that government's scheme to interfere in the presidential election and that there was not enough evidence to establish that President Trump committed an obstruction-of-justice offense. Id. at 42–44. He then made available to the Congress and the public a redacted version of the Mueller Report and invoked numerous FOIA exemptions to justify the redactions. See id. at 44–45.

BuzzFeed, along with the Electronic Privacy Information Center (EPIC), submitted FOIA requests to DOJ seeking a copy of the unredacted version of the Mueller Report. Id. at 46–47. Although DOJ granted BuzzFeed's request for expedited processing of the FOIA request, it did not produce the unredacted report by the applicable deadline. Id. at 47. BuzzFeed then filed this suit in district court. Id. After the parties filed cross-motions for summary judgment, the district court ordered DOJ to submit the unredacted version of the Mueller Report to the court for in camera review. Id. at 52 (granting in part and denying in part BuzzFeed's summary judgment motion and denying without prejudice DOJ's summary judgment motion). The court stated that it would, if necessary, issue a supplemental ruling on the summary judgment motions after completing its review. Id.

After reviewing the unredacted version of the Report, the district court then issued the order sub judice . Elec. Priv. Info. Ctr. v. Dep't of Just. (EPIC II ), 490 F. Supp. 3d 246, 275 (D.D.C. 2020) (granting in part and denying in part both parties’ motions for summary judgment). It examined DOJ's justifications for redacting portions of the Mueller Report under FOIA Exemptions 3, 5, 6, 7(A), 7(C) and 7(E). Id. at 255 ; see 5 U.S.C. § 552(b)(3), (5), (6), 7(A), 7(C), 7(E). Specifically, it granted DOJ's summary judgment motion with respect to (1) grand jury information protected by Exemption 3 and Federal Rule of Criminal Procedure 6(e), which prohibits disclosure of "matter[s] occurring before the grand jury," FED . R. CRIM . P. 6(e) ; (2) intelligence sources and methods protected by Exemption 3 and the National Security Act, 50 U.S.C. § 3024(i)(1) ; and (3) law enforcement and privacy information protected by Exemptions 6, 7(A), 7(C) and 7(E). Id. at 260, 261, 266, 268, 270. The district court denied DOJ's motion and granted BuzzFeed's motion with respect to deliberative information regarding charging decisions allegedly protected by Exemption 5, concluding that DOJ must disclose the information redacted pursuant to this exemption, "unless such information has been properly withheld pursuant to another exemption."² Id. at 274. Finally, it determined that "there are no segregability problems in this case [as] all reasonably segregable information within [the Mueller Report] has been released." Id. at 275 (citation omitted).

With respect to Exemption 7(C)³ —the only exemption at issue on appeal—and the names and personally identifiable information of individuals investigated but not charged by the Special Counsel, the district court concluded that DOJ "adequately explained the harms associated with releasing this information" and that the individuals’ privacy interests were not outweighed by the public's interest in disclosure. Id. at 263, 265. It determined that these individuals—individuals "including the President's family, associates, and government officials"—despite their public prominence, maintained privacy interests in avoiding the stigma, embarrassment and other reputational or even physical harm that may come with being connected to a high-profile public corruption investigation. Id. at 264–65. BuzzFeed had "failed to show how the disclosure of individuals’ names would contribute significantly to public understanding of the operations or activities of the government ... or would be probative of the government's alleged misconduct." Id. at 265–66 (cleaned up).

BuzzFeed challenges only this aspect of the district court's judgment: the grant of summary judgment to DOJ with respect to information withheld from disclosure under Exemption 7(C) and coded by DOJ in the redacted Report as "(b)(6...