Pike v. U.S. Dep't of Justice, Civ. No. 15–cv–0301 (KBJ)

• Decision Date: 20 September 2016
• Docket Number: Civ. No. 15–cv–0301 (KBJ)
• Citation: 306 F.Supp.3d 400
• Parties: Adam PIKE, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — District of Columbia

306 F.Supp.3d 400

Adam PIKE, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

Civ. No. 15–cv–0301 (KBJ)

United States District Court, District of Columbia.

Signed September 20, 2016

Patric Hooper, Pro Hac Vice, Hooper, Lundy & Bookman, Los Angeles, CA, Kelly A. Carroll, Hooper Lundy & Bookman, PC, Washington, DC, for Plaintiff.

John Cuong Truong, U.S. Attorney's Office for the District of Columbia Washington, DC, for Defendant.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District JudgeOn July 26, 2011, a government informant recorded Plaintiffs Adam Pike and Bret Berry having a conversation. The recording was created without Plaintiffs' knowledge, and once they learned about it (which occurred because excerpts from the transcribed conversation were filed in a related civil lawsuit), Plaintiffs requested a copy of the complete audio recording and the entire written transcript from the U.S. Department of Justice ("DOJ" or "Defendant") under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). In response to the FOIA request, DOJ located the audio recording and the transcript of that recorded conversation, but it withheld these records on the grounds that they were exempt from release under FOIA because producing them would interfere with an ongoing criminal investigation. Plaintiffs have filed the instant lawsuit to challenge the agency's conclusion that the records are exempt from disclosure, and they have asked this Court for an order that requires the release of the transcript and audio recording in their entirety. (See generally Compl., ECF No. 1.)

Before this Court at present are the parties' cross-motions for summary judgment. (See Pls.' Mot. for Summ. J. ("Pls.' Mot."), ECF No. 8; Def.'s Mot. for Summ. J. ("Def.'s Mot."), ECF No. 10.) DOJ contends that it has properly withheld the entire audio recording and transcript under FOIA Exemption 7(A) because the recording and transcript were created for law enforcement purposes, and because the disclosure of these records as a whole would, among other things, interfere with prospective criminal enforcement proceedings and alert suspects to the ongoing investigation, thereby allowing them to elude detection. (See Def.'s Mem. in Supp. of Def.'s Mot. ("Def.'s Mem."), ECF No. 10–2, at 8–10.)¹ Additionally, and presumably in the alternative, Defendant contends that the withholding was proper under FOIA Exemption 7(D), because the source of the recording was an FBI confidential informant whose identity and information are protected from disclosure under the FOIA. (See id. at 10–12.) In their cross-motion, Plaintiffs counter that Defendant previously published excerpts of the transcript of the recording in the context of a civil action, and therefore, a substantial portion of the information at issue is already in the public domain. (See Pls.' Mem. in Supp. of Pls.' Mot. ("Pls.' Mem."), ECF No. 8–1, at 11–13.) According to Plaintiffs, this means that Defendant has waived any reasonable purpose or justification for withholding the disputed records in their entirety under Exemptions 7(A) and 7(D). (See id. at 11–15; see also Pls.' Mem. in Opp'n to Def.'s Mot. ("Pls.' Opp'n"), ECF No. 14, at 4–5.)

For the reasons explained below, this Court concludes that the Defendant has shown that the records at issue in this matter satisfy the requirements of FOIA Exemption 7(A), and thus, absent any waiver, the government is entitled to withhold both the audio recording and the transcript in their entirety. However, because the government previously publicly disclosed certain excerpts from the transcript, it has waived the right to withhold those same written excerpts from disclosure in the context of this FOIA action. Consequently, both parties' cross-motions for summary judgment will be GRANTED IN PART and DENIED IN PART , and Defendant must produce those parts of the written transcript that mirror the excerpts the government has previously released. A separate order consistent will this memorandum opinion will follow.

I. BACKGROUND

A. Relevant Facts²

Plaintiffs Pike and Berry are the subject of an ongoing fraud investigation that the Federal Bureau of Investigation ("FBI") and DOJ are conducting regarding an alleged "kickback" scheme that involves Reliance Medical Systems LLC (Plaintiffs' company) and other third parties. (See Pls.' Stmt. of Material Facts, ECF No. 8–2, ¶ 2; Def.'s Resp. to Pls.' Stmt. of Material Facts, ECF No. 15–1, at 2.) The details of the underlying fraud are not material to the instant action; it suffices to say here that the investigation led federal authorities to file a civil lawsuit against Plaintiffs and other third parties in the U.S. District Court for the Central District of California under the False Claims Act, 31 U.S.C. §§ 3729 – 3733 ("FCA"). (See Pls.' Stmt. of Material Facts ¶ 3; Def.'s Resp. to Pls.' Stmt. of Material Facts at 3.) In that lawsuit, which is currently pending, the complaint references and attaches several excerpts from the transcript of an audio recording dated July 26, 2011. (See Pls.' Stmt. of Material Facts ¶ 3; Def.'s Resp. to Pls.' Stmt. of Material Facts at 3.) According to DOJ, an undisclosed FBI source who agreed to assist in the investigation made the audio recording under the supervision of law enforcement agents. (See Def.'s Stmt. of Material Facts, ECF No. 10–1, ¶¶ 3–4.)³

On October 2, 2014, Plaintiffs' counsel filed a FOIA request with DOJ's Civil Division, seeking "a copy of the recording and any transcript" on an expedited basis. (FOIA Request, Compl. Ex. 4, ECF No. 1–1, at 37.) DOJ located both records, and subsequently explained that both were being withheld in their entirety pursuant to two FOIA Exemptions: 7(A) and 5. (See Decl. of James M. Kovakas ("Kovakas Decl."), Ex. A to Def.'s Mot., ECF No. 10–3, ¶¶ 3–4); see also 5 U.S.C. §§ 552(b)(7)(A), (b)(5). DOJ stated that it was withholding the records under Exemption 7(A) because disclosure would risk interference with ongoing law enforcement proceedings, and that the same withholding was also justified under Exemption 5 because the records requested were inter-agency or intra-agency documents protected under the attorney work-product privilege. (See DOJ's Final FOIA Response, Compl. Ex. 6, ECF No. 1–1, at 52–53.)

B. Procedural History

Plaintiffs appealed DOJ's withholding decision to the agency's Office of Information Policy, which affirmed on the ground that the withholding was permitted under Exemption 7(A). (See Pls.' Stmt. of Material Facts ¶¶ 7–8; Def.'s Stmt. of Material Facts ¶¶ 8–9.) Plaintiffs then brought the present lawsuit, which was filed on March 2, 2015, and seeks a court order requiring "DOJ to produce and disclose the July 26, 2011 recording[.]" (Compl. at 9.) The complaint alleges that DOJ has invoked Exemption (7)(A) improperly, and that, in any case, the agency has waived its right to claim an exemption from releasing the records because it previously widely published the excerpts from the recording's transcript. (See id. ¶ 19.)⁴ Per this Court's order, the parties subsequently filed cross-motions for summary judgment with respect to the issue of whether or not the requested records have been properly withheld. (See Min. Order of Apr. 5, 2015.)

DOJ's motion for summary judgment argues that FOIA Exemption 7(A), which exempts from disclosure investigatory records that could be used in an enforcement action, authorizes the withholding in this case because disclosure of the records Plaintiffs seek would risk interference with an ongoing criminal investigation into health care fraud and related enforcement proceedings. (See Def.'s Mem. at 8–10.) The agency also asserts that Exemption 7(D) authorizes the withholding of the audio recording and transcript because the release of these records could reasonably be expected to disclose the identity of the FBI's confidential source (see Def.'s Mem. at 10–12), and that the government's prior release of certain transcript excerpts demonstrates that all reasonably segregable material has already been disclosed (see id. at 14 (arguing that disclosure of any further information beyond the quotes included in the FCA complaint "would significantly interfere with the ongoing criminal investigation") ).

For their part, Plaintiffs argue that the government's prior publication of a substantial amount of the recording's transcribed content in the context of the FCA complaint and in an accompanying press release means that DOJ has waived its right to assert any exemption under the FOIA. (See Pls.' Mem. at 11–13.) Plaintiffs also maintain that, "[g]iven the breadth of the previous public disclosures[,]" there is no "[t]ruthful and [r]easonable [b]asis" for DOJ to assert that "disclosure of the remaining portion of the audio recording would interfere with a legitimate government activity" within the meaning of Exemption 7(A). (Id. at 14 (emphasis in original).) And they further insist that the circumstances in this case are "not of a nature warranting an implied assurance of confidentiality" for Exemption 7(D) purposes. (Id. at 17; see also id. (asserting that DOJ has not shown that the agency "expressly assured the source of the confidentiality of his involvement" and that, regardless, DOJ could redact the identity of the source from the recording or the transcript).)

The parties' cross-motions are now ripe for this Court's review.

II. LEGAL STANDARD

"FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. U.S. Border Patrol , 623 F.Supp.2d 83, 87 (D.D.C. 2009) (citing Bigwood v. U.S. Agency for Int'l Dev. , 484 F.Supp.2d 68, 73 (D.D.C. 2007) ). A district court deciding a motion for summary judgment in a FOIA case must review the record de novo , and it has the authority "to order the production of any agency records improperly withheld from the complainant."

5 U.S.C. § 552(a)(4)(B). "In reviewing the agency action, the Court must...