Judicial Watch, Inc. v. U.S. Dep't of Justice

• Decision Date: 31 July 2015
• Docket Number: Civil Action No. (BAH) 14–1024
• Citation: 118 F.Supp.3d 266
• Parties: Judicial Watch, Inc., Plaintiff, v. United States Department of Justice, Defendant.
• Court: U.S. District Court — District of Columbia

118 F.Supp.3d 266

Judicial Watch, Inc., Plaintiff,

v.United States Department of Justice, Defendant.

Civil Action No. (BAH) 14–1024

United States District Court, District of Columbia.

Signed July 31, 2015

Michael Bekesha, Judicial Watch, Inc., Washington, DC, for Plaintiff.

Sam M. Singer, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge

The plaintiff, Judicial Watch, Inc., brings suit against the defendant, the United States Department of Justice ("DOJ"), pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, alleging that the defendant violated the requirements of FOIA when it responded to the plaintiff's FOIA request. Specifically, the plaintiff challenges the defendant's invocation of FOIA Exemptions 5, 6, and 7 to withhold time records for a DOJ attorney. Now pending before the Court are the parties' cross motions for summary judgment. For the reasons stated below, the defendant's motion for summary judgment is granted and the plaintiff's cross-motion for summary judgment is denied.

I. BACKGROUND

The defendant is actively investigating whether Internal Revenue Service ("IRS") employees engaged in potential criminal misconduct in connection with the IRS's handling of various organizations' applications for tax-exempt status. See Decl. of Nelson D. Hermilla ("Hermilla Decl.") at ¶ 3, ECF No. 10–1. Attorneys from the DOJ's Civil Rights Division and the Public Integrity Section of the Criminal Division are conducting the investigation, with assistance from the Federal Bureau of Investigation and the Department of Treasury Inspector General for Tax Administration. Id. In response to Congressional inquiries, the defendant has revealed that Barbara Bosserman, a career senior legal counsel for the Civil Rights Division, is one of the attorneys involved in conducting the investigation.¹ Id. ¶ 4.

The plaintiff submitted a FOIA request to the defendant, seeking "[a]ll Justice Department records from the Interactive Case Management System detailing the number of hours DOJ Attorney Barbara Bosserman expended on the investigation of the Internal Revenue Service targeting of conservative organizations seeking tax-exempt status in the 2010 and 2012 election cycles." Compl. ¶ 5, ECF No. 1. After failing to respond to the plaintiff's request, or advise the plaintiff of its ability to appeal such a non-response, the plaintiff initiated the instant suit.See id. ¶¶ 7–9.

After the plaintiff filed suit, the defendant initiated a search for documents responsive to the plaintiff's FOIA request. In order to comply with the FOIA request, the defendant queried the Interactive Case Management ("ICM") system for the time records of Ms. Bosserman. Hermilla Decl. ¶ 10. The ICM system "tracks the case-related activities" for the defendant's legal staff. Id. ¶ 8. The systems "is a tool for senior management to oversee the work of the Division and to report matter and case data at all levels of the Department to provide for accountability and analyze the Division's performance." Id. The ICM "capture[s] and report[s] to Division managers, the level of effort that attorneys and professionals dedicate to investigations and case-related tasks." Id. The ICM system records "the dates of activity, the type of work, the hours expended, a description of the activity, the case name, and the Department of Justice File number." Id. ¶ 9.

With respect to Ms. Bosserman, the ICM maintained records detailing "the specific dates [Ms. Bosserman] worked, the number of hours she worked on the investigation on a given date, and the type of activity she performed." Id. ¶ 10. In addition, certain entries contained "notes" describing the tasks performed by Ms. Bosserman, including "notes about locations visited, persons consulted, staff briefings, and other case developments." Id. ¶ 10. After identifying this information, and in response to the plaintiff's FOIA request, the defendant informed the plaintiff that it possessed documents responsive to its FOIA request but that the documents were exempt from disclosure under FOIA exemptions 6 and 7(C). Id. ¶ 7. Now pending before the Court are the parties' cross motions for summary judgment.

II. LEGAL STANDARD

Congress enacted the FOIA as a means "to ‘open agency action to the light of public scrutiny.’ " Am. Civil Liberties Union v. U.S. Dep't of Justice, 750 F.3d 927, 929 (D.C.Cir.2014) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ). Disclosure is the " ‘basic policy’ " of the Act. Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Justice (CREW), 746 F.3d 1082, 1088 (D.C.Cir.2014) (quoting Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001). At the same time, the statute represents a "balance [of] the public's interest in governmental transparency against legitimate governmental and private interests that could be harmed by release of certain types of information." United Techs. Corp. v. U.S. Dep't of Def., 601 F.3d 557, 559 (D.C.Cir.2010) (internal quotation marks and citations omitted). Reflecting that balance, the FOIA contains nine exemptions set forth in 5 U.S.C. § 552(b), which "are explicitly made exclusive and must be narrowly construed." Milner v. U.S. Dep't of Navy, 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (internal quotations and citations omitted) (citing FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982) ); see CREW, 746 F.3d at 1088 ; Pub. Citizen, Inc. v. Ofc. of Mgmt. and Budget, 598 F.3d 865, 869 (D.C.Cir.2010). "[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Am. Civil Liberties Union v. U.S. Dep't of Justice, 655 F.3d 1, 5 (D.C.Cir.2011) (quoting Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C.Cir.2002) ).

The agency invoking an exemption to the FOIA "bears the burden of showing that a claimed exemption applies." Elec. Frontier Found. v. U.S. Dep't of Justice, 739 F.3d 1, 7 (D.C.Cir.2014) ; see also CREW, 746 F.3d at 1088 ; Loving v. U.S. Dep't of Def., 550 F.3d 32, 37 (D.C.Cir.2008) ; Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C.Cir.2003). In order to carry this burden, an agency must submit sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, or both, to demonstrate that the government has analyzed carefully any material withheld, to enable the court to fulfill its duty of ruling on the applicability of the exemption, and to enable the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court. See DeBrew v. Atwood, No. 12–5361, 792 F.3d 118, 122–23, 2015 WL 3949421, at *2 (D.C.Cir. June 30, 2015) ; see also CREW, 746 F.3d at 1088 ("The agency may carry that burden by submitting affidavits that ‘describe the justifications 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.’ " (quoting Larson v. U.S. Dep't of State, 565 F.3d 857, 862 (D.C.Cir.2009) ); Oglesby v. U.S. Dep't of the Army, 79 F.3d 1172, 1176 (D.C.Cir.1996) ("The description and explanation the agency offers should reveal as much detail as possible as to the nature of the document, without actually disclosing information that deserves protection ... [which] serves the purpose of providing the requestor with a realistic opportunity to challenge the agency's decision.").

The FOIA provides federal courts with the power to "enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B). Moreover, a district court has an "affirmative duty" to consider whether the agency has produced all segregable, non-exempt information. Elliott v. U.S. Dep't of Agric., 596 F.3d 842, 851 (D.C.Cir.2010) (referring to court's "affirmative duty to consider the segregability issue sua sponte " (quoting Morley v. CIA, 508 F.3d 1108, 1123 (D.C.Cir.2007) )); Stolt–Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728, 733–735 (D.C.Cir.2008) (" ‘[B]efore approving the application of a FOIA exemption, the district court must make specific findings of segregability regarding the documents to be withheld.’ " (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C.Cir.2007) )); see also 5 U.S.C. § 552(b) ("Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.").

Summary judgment is appropriate when "there is no genuine dispute as to any material fact." Fed.R.Civ.P. 56. "In FOIA cases, ‘[s]ummary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.’ " Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, at 215 (D.C.Cir.2013) (quoting Consumer Fed'n of Am. v. U.S. Dep't of Agric., 455 F.3d 283, 287 (D.C.Cir.2006) and Gallant v. NLRB, 26 F.3d 168, 171 (D.C.Cir.1994) ). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ " Judicial Watch, Inc. v. U.S. Dep't of Def., 715 F.3d 937, 941 (D.C.Cir.2013) (quoting Am. Civil Liberties Union v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C.Cir.2011) ); Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C.Cir.2007) ).

III. DISCUSSION

The defendant initially sought to justify withholding responsive documents from the plaintiff under FOI...