N.Y. Times Co. v. U.S. Dep't of Justice, 1:18-cv-02095 (SDA)

• Decision Date: 22 July 2019
• Docket Number: 1:18-cv-02095 (SDA)
• Citation: 390 F.Supp.3d 499
• Parties: The NEW YORK TIMES COMPANY and Kenneth P. Vogel, Plaintiffs, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — Southern District of New York

390 F.Supp.3d 499

The NEW YORK TIMES COMPANY and Kenneth P. Vogel, Plaintiffs,

v.UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

1:18-cv-02095 (SDA)

United States District Court, S.D. New York.

Signed July 22, 2019

John K. Langford, Los Angeles, CA, Charles Edward Crain, Yale Law School, New Haven, CT, David A. Schulz, Ballard Spahr LLP, New York, NY, for Plaintiffs.

Peter Max Aronoff, United States Attorney's Office for the SDNY, New York, NY, for Defendant.

OPINION AND ORDER

STEWART D. AARON, United States Magistrate Judge

Plaintiffs The New York Times Company and Kenneth P. Vogel, a reporter for The New York Times (together, "Plaintiffs"), bring this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq. , against the United States Department of Justice ("DOJ"), seeking the release of certain correspondence by DOJ's Foreign Agents Registration Act ("FARA") Registration Unit ("FARA Unit") and DOJ's Office of the Inspector General ("OIG") relating to employees, representatives and officials of: (1) the European Center for a Modern Ukraine; (2) the Ukrainian Party of Regions; (3) Inovo BV and Flynn Intel Group; and (4) the Human Rights Accountability Global Initiative Foundation and/or Prevezon Holdings (collectively, the "Enumerated Persons") over certain specified time periods between February 2015 and the present. (Am. Compl., ECF No. 13, ¶¶ 13-15.) Before the Court are the parties' cross-motions for partial summary judgment. (See Def.'s Notice of Mot., ECF No. 42; Pls.' Cross Mot., ECF No. 45.) For the reasons set forth below, DOJ's motion is GRANTED and Plaintiffs' cross-motion is DENIED.

BACKGROUND

I. The Foreign Agents Registration Act

FARA requires persons acting as agents of foreign principals, who engage in political, quasi-political or public relations activities, to register with DOJ and to disclose their activities, receipts and disbursements. See 22 U.S.C. § 611 et seq. DOJ uses FARA as a "national security tool" in order to "identify foreign influence and threats to the United States political process[,]" including "hostile intelligence or influence operations[.]" (Decl. of Patrick N. Findlay, dated Nov. 9, 2018 ("Public Findlay Decl."), ECF No. 43, ¶ 18.); see also Meese v. Keene , 481 U.S. 465, 469, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987) (FARA's "basic purpose" is "to protect the national defense, internal security, and foreign relations of the United States by requiring public disclosure" by lobbyists working on behalf of foreign governments "so that the government and the people of the United States may be informed of the identity of such persons and may appraise their statements and actions in the light of their associations and activities.") (quoting Viereck v. United States , 318 U.S. 236, 244, 63 S.Ct. 561, 87 L.Ed. 734 (1943). DOJ's FARA Unit, located within the Counterintelligence and Export Control Section of the National Security Division ("NSD"), is responsible for administrative enforcement of FARA. (Public Findlay Decl. ¶ 17.) The FARA Unit also partners with local United States Attorney's Offices and other DOJ components to enforce FARA through civil enforcement proceedings or criminal proceedings for willful violations. (Id. )

II. The Enumerated Persons

The requested records relate to individuals and entities affiliated with President Donald Trump's campaign during the 2016 presidential election, including Paul J. Manafort, Jr. ("Manafort"), Richard W. Gates III ("Gates") and Michael Flynn ("Flynn"). (Pl. Mem. at 1-5.)

Between approximately 2005 and 2015, Manafort and Gates engaged in lobbying activities in the United States on behalf of the Ukrainian government, and various Ukrainian politicians and political parties, including the Ukrainian Party of Regions, through Manafort's consulting companies Davis Manafort Partners, Inc. ("DMP") and later DMP International, LLC ("DMI")). (Pls.' 56.1 Statement, ECF No. 52, ¶¶ 1-5.)¹ Manafort and Gates used the European Centre for a Modern Ukraine, in part, to carry out their activities. (Id. ¶ 5.) In March 2016, the Trump campaign hired Manafort as an adviser. (Id. ¶ 9.) Manafort resigned from the campaign in August 2016 and, in June 2018, Manafort retroactively registered DMI under FARA. (Id. ¶¶ 13-14.) In 2018, Manafort pleaded guilty to, among other things, conspiracy to violate FARA by failing to register and by providing false statements in a document filed with FARA. See Recent FARA Cases, https://www.justice.gov/nsd-fara/recent-cases (last visited July 19, 2019) ("Recent FARA Cases"). Gates also pleaded guilty to, among other things, conspiracy to violate FARA by failing to register and by providing false statements in a document filed with FARA. (Id. )

In 2015, Michael Flynn and two associates founded the Flynn Intel Group. (Pls.' 56.1 Statement ¶ 15.) The Flynn Intel Group was hired by Inovo BV to conduct lobbying efforts on behalf of the Turkish government. (Id. ¶ 16.) In November 2016, Flynn was selected by President-Elect Trump to serve as National Security Advisor. (Id. ¶ 18.) Flynn resigned from that position in February 2017. (Id. ¶ 20.) In March 2017, Flynn registered under FARA. (Id. ¶ 21.) In 2017, Flynn pleaded guilty to making false statements to the FBI pertaining to his communications with the Russian Ambassador to the United States. See Recent FARA Cases. "In the Statement of Offense filed with his plea agreement, Flynn admitted to making materially false statements in multiple documents filed pursuant to FARA in conjunction with worked performed by him and his company for the principal benefit of the Republic of Turkey." Id.

The Human Rights Accountability Global Initiative Fund ("HRAGIF") is a Delaware nongovernmental organization. (Pls.' 56.1 Statement ¶¶ 25, 29-30.) In a complaint filed by Hermitage Capital Management with the FARA Unit in July 2016, HRAGIF and Prevezon Holdings Limited ("Prevezon"), a Russian-owned, Cyprus-based company, were alleged to have conducted lobbying in the United States on behalf of the Russian government in their effort to seek to amend and possibly repeal the Magnitsky Act² without complying with FARA's registration requirements. (Id. ¶¶ 29-30.)

III. Plaintiffs' FOIA Requests And Government Response

On August 8, 2017, Plaintiffs submitted four FOIA requests to DOJ, three directed to the FARA Unit and one directed to OIG, seeking records related to the Enumerated Persons. (See Am. Compl. Exs. A-D, ECF Nos. 13-1 to 13-4.) The first request sought copies of correspondence between employees and officials of the FARA Unit and employees and officials of the United States Congress related to the Enumerated Persons for specified time periods.³ (Am. Compl. Ex. A, ECF No. 13-1.) The second request sought copies of internal correspondence between employees and officials of the FARA Unit related to the Enumerated Persons for the specified time periods. (Am. Compl. Ex. B, ECF No. 13-2.) The third request sought copies of correspondence between employees and officials of the FARA Unit and representatives of the Enumerated Persons for the specified time periods. (Am. Compl. Ex. C, ECF No. 13-3.) The fourth request sought copies of correspondence between employees and officials of OIG, as well as correspondence between employees and officials of OIG and employees and officials of the FARA Unit or the United States Congress, related to the Enumerated Persons for the specified time periods. (Am. Compl. Ex. D, ECF No. 13-4.) Plaintiffs sought expedited processing for each of the requests, arguing that the information sought was "of widespread and exceptional media interest and involve[d] questions which could affect public confidence about [DOJ's] integrity in enforcing [FARA.]" (Am. Compl. Exs. A-D, ECF Nos. 13-1 to 13-4.)

On August 30, 2017, a Government Information Specialist from NSD acknowledged receipt of the three requests directed to the FARA Unit. (Am. Compl. Ex. E, ECF No. 13-5.) However, DOJ denied expedited processing, stating that Plaintiffs had not met the standard for a "compelling need." (Id. ) Plaintiffs appealed the denial of expedited processing as to the first and third requests. (Decl. of John Langford, dated Dec. 14, 2018 ("Langford Decl.") Exs. R & S, ECF Nos. 51-17 & 51-18.) On September 8, 2017, a Government Information Specialist from OIG acknowledged receipt of the request directed to it. (Langford Decl. Ex. U, ECF No. 51-20.) On October 18, 2017, DOJ granted Plaintiffs' appeal and remanded the requests to NSD to process "as quickly as practicable." (Am. Compl. Ex. G, ECF No. 13-7.)

On March 8, 2018, Plaintiffs filed the instant action to compel disclosure of responsive records. (See Compl., ECF No. 5.) As of that date, Plaintiffs had not received any records or further communication from NSD or OIG regarding the requests. (Id. ¶¶ 19, 22.) On March 13, 2018, OIG responded to the request directed to it, reporting that the agency had conducted a search for responsive records, but had found none. (See Am. Compl. Ex. H, ECF No. 13-8.)

Plaintiffs filed an Amended Complaint on April 3, 2018 (Am. Compl., ECF No. 13) and DOJ filed its Answer on April 26, 2018. (Answer, ECF No. 18.) As part of the Amended Complaint, Plaintiffs alleged that during the covered period the Senate Committee on the Judiciary and Subcommittee on Crime and Terrorism communicated with OIG on matters related to FARA, and thus, asserted that OIG's failure to locate any responsive records indicated that OIG failed to conduct a reasonable search. (Am. Compl. ¶¶ 26-27.)

Following the filing of DOJ's Answer, the Court ordered DOJ to begin a rolling production of documents responsive to the two FOIA requests for which DOJ previously determined that expedited processing was warranted (the first and third requests) and, no later than May 10, 2018, to file a letter regarding the status of each of the four FOIA requests, as well as a timeline for completing production of documents responsive to the...