Freedom Watch, Inc. v. Mueller

• Decision Date: 23 March 2020
• Docket Number: No. 18-cv-88 (EGS),18-cv-88 (EGS)
• Parties: FREEDOM WATCH, INC., Plaintiff, v. Robert S. MUELLER III, et al., Defendants.
• Court: U.S. District Court — District of Columbia

453 F.Supp.3d 139

FREEDOM WATCH, INC., Plaintiff,

v.Robert S. MUELLER III, et al., Defendants.

No. 18-cv-88 (EGS)

United States District Court, District of Columbia.

Signed March 23, 2020

Larry E. Klayman, Klayman Law Group, P.A., Washington, DC, for Plaintiff.

Bradley P. Humphreys, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge

Plaintiff Freedom Watch, Inc., a non-profit organization, brings this action against Defendants Robert S. Mueller III ("Mr. Mueller"), United States Department of Justice ("DOJ"), and Federal Bureau of Investigation ("FBI") (collectively, "DOJ") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Freedom Watch seeks to obtain certain records from DOJ and the Special Counsel's Office ("SCO")—a component of DOJ—concerning the investigation into Russia's interference in the 2016 presidential election and related matters—specifically, communications to and from the media pertaining to the activities of the FBI, Mr. Mueller, and his staff.

Pending before the Court is DOJ's motion for summary judgment. Upon careful consideration of the motion, opposition, and reply thereto, the applicable law, and the entire record herein, the Court GRANTS DOJ's Motion for Summary Judgment.

I. Background

The following facts—drawn from the parties' submissions—are undisputed, unless otherwise indicated. On May 17, 2017, then-Acting Attorney General Rod J. Rosenstein appointed Mr. Mueller to serve as Special Counsel for DOJ and authorized him to investigate the Russian government's efforts to interfere in the 2016 presidential election, including any matters arising from that investigation. Defs.' Ex. 2, ECF No. 36-4 at 25 (Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters, Order No. 3915-2017).¹ Seven months later, on January 2, 2018, Freedom Watch submitted a FOIA request to DOJ, the FBI, and the SCO, seeking to obtain the following:

[D]ocuments and records ... that refer or relate with regard to communications to and from the media ... concerning the activities of [Mr.] Mueller and/or his staff as well as the [FBI], concerning the investigation of alleged Russian collusion and related matters concerning the Trump Presidential Campaign and the Trump Transition Team....

E.g., id. at 20 (FOIA Request); Defs.' Statement of Material Facts ("Defs.' SOMF"), ECF No. 36-5 at 1 ¶ 1; Pl.'s Counter Statement of Material Facts ("Pl.'s SOMF"), ECF No. 37-1 at 2 ¶ 1; Defs.' Reply to Pl.'s SOMF, ECF No. 38-1 at 1 ¶ 1.² Freedom Watch subsequently narrowed its FOIA request to "records of communications to and from the media rather than purely internal communications." Defs.' SOMF, ECF No. 36-5 at 1-2 ¶ 2.

Before the FBI granted Freedom Watch's request for expedited processing on January 23, 2018, id. at 2 ¶ 4, Freedom Watch commenced the instant action on January 15, 2018, id. at 2 ¶ 3. DOJ's Office of Information Policy ("OIP") informed Freedom Watch that its request for expedited processing had been granted for the records maintained by the SCO and DOJ's Public Affairs Office ("PAO") on February 20, 2018. Id. at 2 ¶ 5. On the same day, DOJ filed the answer to Freedom Watch's complaint. Id. at 2 ¶ 6. Freedom Watch moved for summary judgment on March 23, 2018, see generally Pl.'s Mot. for Summ. J., ECF No. 10; the parties then filed status reports at the Court's direction concerning DOJ's production of the requested materials, see generally Docket for Civ. Action No. 18-88; and the Court denied as moot Freedom Watch's motion for summary judgment in light of the Court's Order directing DOJ to produce all non-exempt documents responsive to Freedom Watch's FOIA request, Min. Order of May 25, 2018.

DOJ released responsive materials to Freedom Watch, withholding, in part, certain records under FOIA exemptions. E.g. , Defs.' Ex. 1, ECF No. 36-3 at 57-80 (OIP's Vaughn Index); Defs.' Ex. 2, ECF No. 36-4 at 37-42 (FBI's Vaughn Index).³ Following DOJ's notice to the Court regarding a technical issue with its searches of responsive documents, see Defs.' Status Report, ECF No. 24 at 1-3, Freedom Watch sought discovery and in camera review, see, e.g. , Min. Order of Nov. 26, 2018; Joint Status Report, ECF No. 27 at 1-2; Pl.'s Resp. to Order of the Court, ECF No. 29 at 1. This Court denied Freedom Watch's request for discovery and in camera review as premature, finding, among other things, that the request was based on mere conjecture. Min. Order of Jan. 3, 2019 (explaining that "there [was] no basis in reality to believe that [DOJ's] disclosure" of the technical issue "was, as Freedom Watch puts it, an ‘attempt to shield themselves from the public seeing evidence of their routinely leaking grand jury information to the media and other disclosures for their tactical motivations’ ").

On April 8, 2019, DOJ moved for summary judgment. See Defs.' Mot. for Summ. J. ("Defs.' MSJ"), ECF No. 36 at 1; see generally Defs.' Mem. of Law in Supp. of Defs.' MSJ ("Defs.' Mem."), ECF No. 36-1. On May 9, 2019, Freedom Watch filed its opposition brief. See generally Pl.'s Opp'n, ECF No. 37.⁴ On June 10, 2019, DOJ filed the reply brief. See generally Defs.' Reply, ECF No. 38. The motion is ripe and ready for the Court's adjudication.

II. Legal Standard

The "vast majority" of FOIA cases can be resolved on summary judgment. Brayton v. Office of the U.S. Trade Representative , 641 F.3d 521, 527 (D.C. Cir. 2011). A court may grant summary judgment only if "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). Under FOIA, "the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester[,]" and summary judgment is appropriate only after "the agency proves that it has fully discharged its [FOIA] obligations...." Moore v. Aspin , 916 F. Supp. 32, 35 (D.D.C. 1996) (citations omitted).

When considering a motion for summary judgment under FOIA, the court must conduct a de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). The court may grant summary judgment based on information provided in an agency's affidavits or declarations when they are "relatively detailed and non-conclusory," SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation omitted), and "not controverted by either contrary evidence in the record nor by evidence of agency bad faith," Military Audit Project v. Casey , 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are "accorded a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.’ " SafeCard Servs. , 926 F.2d 1197 at 1200 (citation omitted).

III. Analysis

Freedom Watch challenges DOJ's response to its FOIA request on five fronts: (1) the adequacy of DOJ's search; (2) the withholding of documents under Exemption 5's deliberative process privilege; (3) the withholding of names and other personal identifying information pursuant to Exemption 6; (4) the withholding of certain portions in a single e-mail under Exemption 7(C); and (5) DOJ's segregability determinations. Pl.'s Opp'n, ECF No. 37 at 3-13. The Court addresses each challenge in turn.

A. The Adequacy of DOJ's Search for Responsive Records

To demonstrate the adequacy of its search at the summary judgment stage, DOJ "must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of the Army , 920 F.2d 57, 68 (D.C. Cir. 1990). "[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate. " Weisberg v. DOJ , 745 F.2d 1476, 1485 (D.C. Cir. 1984). "The adequacy of the search, in turn, is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case." Id. To meet its burden, an agency may provide "a reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials ... were searched." Iturralde v. Comptroller of Currency , 315 F.3d 311, 313-14 (D.C. Cir. 2003) (citation and internal quotation marks omitted). "If, however, the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper." Truitt v. Dep't of State , 897 F.2d 540, 542 (D.C. Cir. 1990).

Here, DOJ has demonstrated that it has met its FOIA obligations by conducting an adequate and reasonable search for the responsive records from within OIP, SCO, and the FBI. DOJ's two declarations—(1) Brinkmann declaration; and (2) Hardy declaration—"explain in reasonable detail the scope and method of the search." Kidd v. DOJ , 362 F. Supp. 2d 291, 295 (D.D.C. 2005) (citation and internal quotation marks omitted). "To satisfy the dictates of FOIA, [DOJ] must, at a minimum, ‘aver that it has searched all files likely to contain relevant documents.’ " Huntington v. U.S. Dep't of Commerce , 234 F. Supp. 3d 94, 103 (D.D.C. 2017) (quoting Am. Immigration Council v. Dep't of Homeland Sec. , 21 F. Supp. 3d 60, 71 (D.D.C. 2014) ). For the reasons explained below, the Court is satisfied that OIP and the FBI conducted adequate searches for all locations likely to contain responsive documents. See, e.g. , Brinkmann Decl., ECF No. 36-3 at 12 ¶ 25; Hardy Decl., ECF No. 36-4 at 7 ¶¶ 14-15.

1. OIP's Search for Responsive Records

OIP—the office responsible for processing FOIA requests for records from within OIP, DOJ's six senior leadership offices, and the SCO—located 5,881 pages of records responsive to Freedom Watch's FOIA request. Brinkmann Decl., ECF No. 36-3 at 2 ¶ 1, 5 ¶ 9, 10 ¶ 21. Of particular relevance...