Lucaj v. Fed. Bureau of Investigation

• Decision Date: 24 March 2017
• Docket Number: No. 16-1381,16-1381
• Citation: 852 F.3d 541
• Parties: Doda LUCAJ, Plaintiff–Appellant, v. FEDERAL BUREAU OF INVESTIGATION; United States Department of Justice, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

852 F.3d 541

Doda LUCAJ, Plaintiff–Appellant,

v.FEDERAL BUREAU OF INVESTIGATION; United States Department of Justice, Defendants–Appellees.

No. 16-1381

United States Court of Appeals, Sixth Circuit.

Argued: January 27, 2017

Decided and Filed: March 24, 2017

ARGUED: Martin E. Crandall, CLARK HILL PLC, Detroit, Michigan, for Appellant. Derri T. Thomas, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellees.

ON BRIEF: Martin E. Crandall, Andrew M. Mast, Zachary A. Rowley, CLARK HILL PLC, Detroit, Michigan, for Appellant. Derri T. Thomas, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellees.

Before: MERRITT, MOORE, and STRANCH, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

The Freedom of Information Act ("FOIA") "implements a general philosophy of full agency disclosure of government records," Detroit Free Press Inc. v. DOJ , 829 F.3d 478, 480 (6th Cir. 2016) (en banc) (internal quotation marks omitted), subject to certain exemptions. At issue in this case is the exemption from disclosure for "matters that are ... inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5) (2012). The Defendants–Appellees, the Federal Bureau of Investigation ("FBI") and the United States Department of Justice ("DOJ"), argue that "inter-agency or intra-agency" includes agencies of other countries. Their entreaty, which could be easily granted by an Act of Congress, cannot so easily be granted by us. We must follow the plain language of § 552(b)(5), which, as we discuss below, is limited to memorandums or letters between authorities of the Government of the United States. Therefore, we REVERSE the judgment of the district court, which granted summary judgment to the Government, and we REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

This case began with an FBI investigation into Plaintiff–Appellant Doda Lucaj, whom it believed to be connected to "attacks made by an ethnic Albanian group against facilities in Montenegro in hopes of influencing Montenegrin elections." R. 22–2 (Hardy Decl. ¶ 5) (Page ID #327). Lucaj was indicted by Montenegrin authorities in 2006 and was arrested shortly thereafter in Vienna, Austria. Id. Of the belief that his arrest was "illegal," and furthermore that the United States was involved, see R. 1 (Compl. ¶¶ 1–3) (Page ID #1–2), Lucaj sent a letter to the FBI requesting three pieces of information pursuant to FOIA:

1. Any and all information relating to any investigation, arrest, detention, and/or interrogation of Mr. Lucaj [related to his arrest, detention, and interrogation in Vienna, Austria on December 7, 2006].

2. Any and all documents relating to the same, including any and all FD–302s.¹

3. The identities of any agents who participated and/or witnessed any interview or interrogation of Mr. Lucaj, including, but not limited to, FBI Agents, Immigration and Customs Enforcement Agents and anybody else working on this.

R. 1–2 (May 11, 2012 Letter at 1) (Page ID #9); R. 22–2 (Hardy Decl. ¶ 6) (Page ID #328). Lucaj's requests were met with some bureaucratic delay,² so he requested that the district court order their production pursuant to § 552(a)(4)(B).

Since Lucaj filed his complaint, the DOJ and FBI have produced some responsive documents but have declared others exempt. See R. 17–5 (Brodfuehrer Decl. ¶¶ 8, 10, 15–25) (Page ID #285–86, 288–93) (citing, inter alia, 5 U.S.C. § 552(b)(3), (5) ); R. 22–2 (Hardy Decl. ¶¶ 25–27) (Page ID #332–36) (citing, inter alia, 5 U.S.C. § 552(b)(3) ). Chief among the allegedly exempt documents were two eight-page requests for assistance ("RFA") from the Office of International Affairs ("OIA"), a part of the DOJ Criminal Division. See R. 17–5 (Brodfuehrer Decl. ¶ 10) (Page ID #286).

The first of these requests was sent by the OIA to the Central Authority of Austria pursuant to a mutual legal assistance treaty ("MLAT"), id. ¶¶ 11–12, 22 (Page ID #286–87, 291), which obligates the two countries to "provide mutual assistance ... in connection with the investigation and prosecution of offenses," Treaty Between the Government of the United States of America and the Government of the Republic of Austria on Mutual Legal Assistance in Criminal Matters, Austria–U.S., art. 1, ¶ 1, Feb. 23, 1995, S. Treaty Doc. 104–21 (1995). Although the request naturally sought information from Austria, it also contained information that the FBI did not want to disclose: (1) "factual information possessed by the DOJ at the time the MLAT request was executed," (2) "legal theories of the case," (3) "the history of legal or law enforcement actions previously taken against [Lucaj]," (4) "a summary of the facts and evidence in the investigation," (5) "the statutory basis for the alleged criminal offenses," (6) "personal information regarding the subjects of the investigation," and (7) "the assistance requested and the procedures to be followed when performing said assistance." Id. ¶ 12 (Page ID #286–87).

The second request was sent to an unnamed foreign government, with which the United States does not share an MLAT. Id. ¶ 13 (Page ID #287). The document is a "letter request for information in the possession of a foreign government, and it asks for permission to interview various individuals regarding a national security investigation of [Lucaj] and others for possible violations of United States law." Id. Like the RFA to the Central Authority of Austria, the second RFA reveals certain information in addition to the request: (1) "factual information possessed by DOJ at the time of the letter request," (2) "DOJ's legal theories of the case," (3) "the history of legal or law enforcement actions previously taken against [Lucaj]," (4) "a summary of the facts and evidence in the investigation," (5) "the statutory basis for the alleged criminal offenses," (6) "personal information regarding the subjects of the investigation," (7) "the assistance requested," and (8) "the procedures to be followed when performing said assistance." Id.

Once it believed that it had "fully discharged its disclosure obligations in response to plaintiff's attorney's FOIA request," the FBI filed the motion for summary judgment that is the subject of this appeal. R. 17 (Def.'s Mot. Summ. J. at 1) (Page ID #85). Lucaj disagreed that the FBI discharged its obligations, particularly with respect to the aforementioned RFAs, so he opposed the FBI's motion. R. 23 (Pl.'s Resp. Def.'s Mot. Summ. J. & Cross–Mot. Partial Summ. J. at 4, 11–14) (Page ID #481, 488–91). The FBI maintained that it had fully discharged its disclosure obligations, and for the first time in its reply argued that the "common interest doctrine," which "permits parties whose legal interests coincide to share privileged materials with one another in order to more effectively prosecute or defend their claims," Hunton & Williams v. DOJ , 590 F.3d 272, 277–78 (4th Cir. 2010), shielded the RFAs from disclosure.³ See R. 24 (Def.'s Reply Br. in Support of Def.'s Mot. Summ. J. at 3–4) (Page ID #496–97). Lucaj opposed this application of the common-interest doctrine at a hearing on the summary-judgment motion. See R. 30 (Mot. Summ. J. Hr'g Tr. at 24) (Page ID #607). The FBI's invocation of the common-interest doctrine ultimately persuaded the district court that the requests to Austria and to the unnamed government were exempt under § 552(b)(5). See Lucaj v. FBI , No. 14-12635, 2016 WL 319525, at *3–5 (E.D. Mich. Jan. 27, 2016). Accordingly, the district court granted the FBI's motion. Id. at *5. The FBI's argument does not persuade us, however, and we explain why below.

II. DISCUSSION

A. Standard of Review

Pursuant to 5 U.S.C. § 552(a)(4)(B), a district court reviews de novo an agency's denial of a request for disclosure of agency records. See Rugiero v. DOJ , 257 F.3d 534, 543 (6th Cir. 2001). On appeal, we review de novo a district court's grant of summary judgment. Id. We affirm such an award "if the movant shows that 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).

B. Exemption 5

As a general matter, FOIA demands that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). However, "[t]his mandate does not apply ... to information that falls within any of nine specific exemption categories listed at 5 U.S.C. § 552(b)."

Abraham & Rose, P.L.C. v. United States , 138 F.3d 1075, 1078 (6th Cir. 1998). "In keeping with the philosophy of disclosure, however, these exemptions are narrowly construed, and the government has the burden of establishing that one of them applies." Schell v. HHS , 843 F.2d 933, 937 (6th Cir. 1988) (internal quotation marks omitted).

The fifth of these exemptions targets "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested." 5 U.S.C. § 552(b)(5). Thus, to declare memorandums or letters exempt from disclosure under this rule, the Government must make two showings: the document's "source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it." Dep't of the Interior v. Klamath Water Users Protective Ass'n , 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) [hereinafter Klamath ].

It may appear from the phrasing of the first condition that a memorandum sent from a Government agency to a nonagency would be exempt,...