UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff,

v. No. 20-0212 (EGS) U.S. DEPARTMENT OF JUSTICE,

Defendant.

MEMORANDUM OPINION

I. Introduction

Plaintiff Citizens for Responsibility and Ethics in

Washington (“CREW”) has sued Defendant U.S. Department of

Justice (“DOJ”) under the Freedom of Information Act (“FOIA”),

, and the Declaratory Judgment Act,

and 2202. See Compl., ECF No. 1 ¶ 1.1 CREW challenges DOJ’s

decision to withhold responsive records—specifically, three

spreadsheets of information—pursuant to various FOIA exemptions.

See

Pending before the Court are DOJ’s Motion for Summary

Judgment, see Def.’s Mot. Summ. J., ECF No. 16; and CREW’s

1 When citing electronic filings throughout this Opinion, the Court refers to the ECF page numbers, not the page numbers of the filed documents. 1 Motion for Partial Summary Judgment, see Pl.’s Cross-Mot.

Partial Summ. J., ECF No. 18. Upon careful consideration of the

motions, the oppositions, and replies thereto, the applicable

law, and the entire record herein, the Court hereby GRANTS DOJ’s

Motion for Summary Judgment and DENIES CREW’s Motion for Partial

Summary Judgment.

II. Background

A. Factual

In a letter dated June 10, 2019, DOJ disclosed to Congress

that it was examining certain activities involving the campaigns

in the 2016 U.S. presidential election and other related matters

(the “Review”). Def.’s Reply Counter-Statement of Material Facts

to Which There is No Genuine Issue (“SOMF”), ECF No. 21-1 ¶ 1.

The letter confirmed that U.S. Attorney General William P. Barr

(“Attorney General Barr”) had directed U.S. Attorney for the

District of Connecticut John H. Durham (“U.S. Attorney Durham”)

to lead this Review, which was funded out of the U.S. Attorneys

Salaries and Expenses appropriation.

.

CREW submitted two FOIA requests to learn more about the

resources DOJ was expending on the Review. See

. CREW

submitted its first request to DOJ’s Office of Information

Policy (“OIP”) on November 19, 2019.

. Through this FOIA

request, CREW sought disclosure of “documents sufficient to show

the detailed cost breakdowns for trips as they relate to John H.

2 Durham’s review relating to the origins of the government’s

investigation into interference in the 2016 election.”

(quoting Ex. A, ECF No. 16-7 at 1).

CREW submitted a second FOIA request—this time to DOJ’s

Executive Office for United States Attorneys (“EOUSA”) and to

OIP on December 5, 2019.

. In its letter, CREW requested

“copies of all records of budgets, expenses, salaries, and costs

of the investigation being conducted by United States Attorney

John H. Durham.”

(quoting Ex. B, ECF No. 16-8 at 1). Soon

thereafter, EOUSA and OIP acknowledged receipt of CREW’s FOIA

requests. See

.

On May 22, 2020, OIP sent CREW two letters responding to

the FOIA requests.

. OIP stated that it would withhold

in full all records responsive to CREW’s two FOIA requests.

. OIP’s responsive records consist of two spreadsheets.

. The first spreadsheet lists the names, salaries, and home

offices of members of the Review.

. The second

spreadsheet identifies travel information: the identity of the

official(s) making the trip, the duration of the trip, the

destination, and a particularized breakdown of the total cost of

each trip (transportation, lodging, and meals and incidental

expenses).

. OIP claimed that it may withhold these two

spreadsheets in full pursuant to FOIA Exemption 7(A) and that it

3 may withhold certain information in the records pursuant to FOIA

Exemptions 6 and 7(C).

.

On July 1, 2020, EOUSA provided CREW with a letter stating

its final determination.

. EOUSA stated that it would

withhold in full its responsive record: one spreadsheet with two

tabs.

. The first tab lists the identities and salaries

of investigators for the Review.

The second tab lists

information about the Review’s travel expenses: the identity of

the traveler, the duration of the trip, the destination, and the

total cost of the trip.

EOUSA claimed that nondisclosure of

the entire spreadsheet is appropriate pursuant to FOIA Exemption

7(A) and that FOIA Exemptions 5, 6, 7(C), 7(D), and 7(F) protect

certain information from disclosure.

.

Both EOUSA and OIP reviewed the information that they

withheld in their responses to CREW, and both concluded that

they would not be able to segregate any information in the

responsive records without revealing protected information. See

.

B. Procedural

On September 11, 2020, DOJ filed its Motion for Summary

Judgment. See Def.’s Mot. Summ. J., ECF No. 16; Mem. P. & A. in

Supp. of Def.’s Mot. Summ. J. (“Def.’s Mot.”), ECF No. 16-1. On

October 16, 2020, CREW filed its opposition and Cross-Motion for

Partial Summary Judgment. See Pl.’s Cross-Mot. Partial Summ. J.,

4 ECF No. 18; Mem. P. & A. in Opp’n to Def.’s Mot. Summ. J. & in

Supp. of Pl.’s Mot. Summ. J. (“Pl.’s Mot.”), ECF No. 18-1. DOJ

filed its opposition to CREW’s motion and reply in support of

its own motion on November 6, 2020, see Def.’s Reply in Supp. of

its Mot. Summ. J. & Opp’n to Pl.’s Cross-Mot. Summ. J. (“Def.’s

Opp’n”), ECF No. 21; and CREW filed its reply on November 20,

2020, see Pl.’s Reply Mem. in Supp. of its Mot. Summ. J. (“Pl.’s

Reply”), ECF No. 23.

The motions are now ripe and ready for adjudication.

III. Legal Standard

A. Summary Judgment

FOIA cases are typically and appropriately decided on

motions for summary judgment. Gold Anti–Tr. Action Comm., Inc.

v. Bd. of Governors of Fed. Rsrv. Sys.,

(D.D.C. 2011) (citation and internal quotation marks omitted).

Summary judgment is warranted “if the movant shows [by affidavit

or other admissible evidence] 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). A party opposing a

summary judgment motion must show that a genuine factual issue

exists by “(A) citing to particular parts of materials in the

record . . . or (B) showing that the materials cited do not

establish the absence . . . of a genuine dispute.” Fed. R. Civ.

P. 56(c). Any factual assertions in the moving party’s

5 affidavits will be accepted as true unless the opposing party

submits his own affidavits or other documentary evidence

contradicting the assertion. See Neal v. Kelly,

(D.C. Cir. 1992). However, “the inferences to be drawn from

the underlying facts . . . must be viewed in the light most

favorable to the party opposing the motion.” Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp.,

(1986)

(citation and internal quotation marks omitted).

An agency has the burden of demonstrating that “each

document that falls within the class requested either has been

produced, is unidentifiable, or is wholly [or partially] exempt

from the Act’s inspection requirements.” Goland v. CIA,

(D.C. Cir. 1978) (citation and internal quotation marks

omitted). In reviewing a summary judgment motion in the FOIA

context, the court must conduct a de novo review of the record,

see

(a)(4)(B); but may rely on agency

declarations, see SafeCard Servs. v. SEC,

(D.C. Cir. 1991). Agency affidavits or declarations that are

“relatively detailed and non-conclusory” are accorded “a

presumption of good faith, which cannot be rebutted by purely

speculative claims about the existence and discoverability of

other documents.”

(citation and internal quotation marks

omitted). The Court may award summary judgment solely on the

basis of information provided by the department or agency in

6 declarations when the declarations describe “the documents and

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.” Mil. Audit Project v. Casey,

(D.C.

Cir. 1981) (citation and internal quotation marks omitted).

B. FOIA Exemptions

Congress enacted FOIA to “open up the workings of

government to public scrutiny through the disclosure of

government records.” Jud. Watch, Inc. v. U.S. Dep’t of Com.,

(D.D.C. 2019) (quoting Stern v. FBI,

(D.C. Cir. 1984) (internal quotation marks and

alterations omitted)). Although the legislation is aimed toward

“open[ness] . . . of government,” id.; Congress acknowledged

that “legitimate governmental and private interests could be

harmed by release of certain types of information,” Critical

Mass Energy Project v. Nuclear Regul. Comm’n,

(D.C. Cir. 1992) (citation and internal quotation marks

omitted). As such, pursuant to FOIA’s nine exemptions, an agency

may withhold requested information.

(b)(1)-(9).

However, because FOIA established a strong presumption in favor

of disclosure, requested material must be disclosed unless it

falls squarely within one of the exemptions. See Burka v. U.S. 7 Dep't of Health & Hum. Servs.,

, 515 (D.C. Cir.

1996).

The agency bears the burden of justifying any withholding.

See Bigwood v. U.S. Agency for Int’l Dev.,

(D.D.C. 2007). “Ultimately, an agency’s justification for

invoking a FOIA exemption is sufficient if it appears logical or

plausible.” Jud. Watch, Inc. v. U.S. Dep’t of Def.,

(D.C. Cir. 2013) (per curiam) (citation and internal

quotation marks omitted).

IV. Analysis

A. EOUSA and OIP Conducted Reasonably Adequate Searches

DOJ argues that EOUSA and OIP both “‘made a good faith

effort to conduct a search for the requested records, using

methods which can be reasonably expected to produce information

requested.’” Def.’s Mot., ECF No. 16-1 at 11 (quoting Clemente

v. FBI,

(D.C. Cir. 2017) (citation and

internal quotation marks omitted)). CREW does not contest the

adequacy of EOUSA or OIP’s searches. Pl.’s Mot., ECF No. 18-1 at

11 n.1.

Nevertheless, the Court has “an independent duty to

determine whether the agency’s search for responsive records was

adequate.” Tokar v. U.S. Dep’t of Just.,

(D.D.C. 2018) (citing Winston & Strawn, LLP v. McLean,

, 507–08 (D.C. Cir. 2016)). For DOJ to prevail on summary 8 judgment in a FOIA case, “the defending ‘agency must show beyond

material doubt . . . that it has conducted a search reasonably

calculated to uncover all relevant documents.’” Morley v.

C.I.A.,

(D.C. Cir. 2007) (quoting Weisberg

v. U.S. Dep’t of Just.,

(D.C. Cir. 1983)).

It “‘must show that it made a good faith effort,’” Reps. Comm.

for Freedom of Press v. Fed. Bureau of Investigation,

(D.C. Cir. 2017) (quoting Oglesby v. U.S. Dep’t of

Army,

(D.C. Cir. 1990)); which it may “establish

. . . by submitting reasonably detailed, nonconclusory

affidavits describing its efforts,” Baker & Hostetler LLP v.

U.S. Dep’t of Com.,

(D.C. Cir. 2006).

Here, DOJ has submitted affidavits from Ms. Brinkmann, Mr.

Jolly, and Mr. Larson to describe the searches EOUSA and OIP

conducted in response to CREW’s FOIA request. See Brinkmann

Decl., ECF No. 16-3 ¶¶ 6-16; Jolly Decl., ECF No. 16-4 ¶ 6;

Larson Decl., ECF No. 16-5 ¶¶ 7-8. The Court finds that the

affidavit submitted by Ms. Brinkmann “specif[ies] ‘what records

were searched, by whom, and through what process.’” Rodriguez v.

DOD,

(D.D.C. 2017) (quoting Steinberg v.

DOJ,

(D.C. Cir. 1994)); see Brinkmann Decl.,

ECF No. 16-3 ¶¶ 6-16. Further, the affidavit sufficiently

“set[s] forth the search terms and the type of search performed,

and aver[s] that all files likely to contain responsive

9 materials (if such records exist) were searched.” Reps. Comm.,

(quoting Oglesby,

); see Brinkmann

Decl., ECF No. 16-3 ¶¶ 6-16. This information is sufficient to

satisfy the Court’s inquiry. See Iturralde v. Comptroller of

Currency,

(D.C. Cir. 2003) (“[T]he adequacy of

a FOIA search is generally determined not by the fruits of the

search, but by the appropriateness of the methods used to carry

out the search.” (citation omitted)).

DOJ has made its prima facie case, see Reps. Comm.,

; and CREW raises no opposition to that showing.

Accordingly, the Court GRANTS Defendant DOJ’s Motion for Summary

Judgment regarding the adequacy of EOUSA and OIP’s searches.

B. FOIA Exemptions

DOJ asserts that EOUSA and OIP properly withheld responsive

records pursuant to various FOIA exemptions. See Def.’s Mot.,

ECF No. 16-1 at 11-20. CREW opposes the application of each FOIA

exemption to withhold travel destinations, dollar amounts of

investigation expenses, and personnel salaries. See Pl.’s Mot.,

ECF No. 18-1 at 12-16.

The records at issue are three spreadsheets. Two contain

the following information: (1) the names and salaries of the

members of the Review and their home office, Def.’s Mot., ECF

No. 16-1 at 11 (citing Brinkmann Decl., ECF No. 16-3 ¶ 17); and

(2) “travel expense information incurred by members of the

10 Review, including the identity of the travelers, the trip’s

duration, the destination and a breakdown of cost associated

with each trip,”

(citing Brinkmann Decl., ECF No. 16-3 ¶

17). These spreadsheets were withheld in full pursuant to FOIA

Exemption 7(A), and also pursuant to Exemptions 6 and 7(C) for

specific information in them.

The third spreadsheet contains

the identities and salaries of investigators from the U.S.

Attorney’s Office for the District of Connecticut, travel and

travel cost information, and witness identifying information.

(citing Larson Decl., ECF No. 16-5 ¶¶ 6-8). This spreadsheet

was withheld in full pursuant to FOIA Exemption 7(A), and also

pursuant to Exemptions 5, 6, 7(C), and 7(F) for specific

information in the document. Id.

1. The Information Contained in the Spreadsheets Was Compiled for Law Enforcement Purposes

To invoke a subpart of Exemption 7, DOJ must first

demonstrate that the records were “compiled for law enforcement

purposes.”

(b)(7). Exemption 7 protects from

disclosure “records or information compiled for law enforcement

purposes,” but only to the extent that disclosure of such

records would cause an enumerated harm.

(b)(7);

see FBI v. Abramson,

(1982). In considering

whether records were compiled for law enforcement purposes,

“‘the focus is on how and under what circumstances the requested

11 files were compiled and whether the files sought relate to

anything that can fairly be characterized as an enforcement

proceeding.’” Clemente,

(quoting Jefferson v.

Dep’t of Just., Off. of Pro. Resp.,

(D.C.

Cir. 2002)). The agency will meet its threshold requirement by

“establish[ing] a rational nexus between the investigation and

one of the agency’s law enforcement duties and a connection

between an individual or incident and a possible security risk

or violation of federal law.” Blackwell v. FBI,

(D.C. Cir. 2011) (citations and internal quotation marks

omitted).

DOJ claims that it has met this requirement, arguing that

the information in the three spreadsheets is related to the

Review led by U.S. Attorney Durham, whom Attorney General Barr

authorized to conduct the Review and bring any appropriate

criminal charges. See Def.’s Mot., ECF No. 16-1 at 12-13. The

spreadsheets contain the identities and salaries of the members

of the Review and details about their travel and related

expenditures while investigating potential violations of federal

law as well as the identities of witnesses for the Review. See

id. at 12. DOJ asserts that this information has “a direct and

substantial nexus to the ongoing investigation and the

underlying threshold law enforcement purpose.” Def.’s Opp’n, ECF

No. 21 at 3.

12 A record is compiled for law enforcement purposes so long

as there is: (1) a “rational nexus” between the record and the

agency’s law enforcement duties; and (2) a “connection” between

the record and a possible violation of federal law. Blackwell,

. Here, the records satisfy both requirements.

First, there is a rational “nexus” between the records and the

agency’s law enforcement duties. The records contain information

about the salaries, travel and other expenditures, and staffing

details of the members of the Review. Brinkmann Decl., ECF No.

16-3 ¶ 19. The Review needs to track the identities of its

members as well as its travel and other expenses to maintain an

organized investigation. Second, there is a connection between

the records and a possible violation of federal law because the

members of the Review—a law enforcement investigation being

conducted by DOJ—are investigating possible violations of

federal law.

CREW argues that DOJ has not met its initial burden because

the record demonstrates that the spreadsheets were not created

for law enforcement purposes but instead for administrative and

FOIA processing purposes. See Pl.’s Mot., ECF No. 18-1 at 12. As

to the first argument, the cases CREW cites are distinguishable

because in each of those cases, the court concluded that the

connection between the records and whether they had been

compiled for law enforcement purposes was too attenuated for the

13 records to come within the scope of Exemption 7. See Henderson

v. U.S. Dep’t of Just.,

(D.D.C. 2016)

(holding that stenographic expense file had not been compiled

for law enforcement purposes because the only tie to law

enforcement appeared to be “the apparent connection between

stenographic services and the EOUSA’s law enforcement function

in prosecuting plaintiff’s criminal case”); Maydak v. U.S. Dep’t

of Just.,

(D.D.C. 2005)(holding that

the agency had not shown that a list of staff names and titles

at a particular corrections institution was compiled for law

enforcement purposes when the agency withheld the information

from BOP inmates, but released the names and titles to the

general public), order vacated in part, No. CV 00-0562 (RBW),

(D.D.C. Dec. 3, 2008); Leadership Conf. on Civ.

Rts. v. Gonzales,

(D.D.C. 2005)

(concluding that “there [wa]s no evidence that the paralegal

names and work numbers were compiled for law enforcement

purposes” when “the references to paralegals’ names and work

numbers are made to identify to prosecutors the person to whom

their voting initiative reports and records should be sent to”).

Here, by contrast, DOJ has demonstrated that the records are

directly related to activities in furtherance of the Review.

With regard to CREW’s argument that the records were

compiled for FOIA processing purposes, it is not fatal that DOJ

14 has compiled information it stores elsewhere into spreadsheets

to fulfill this FOIA request. The Supreme Court has instructed

that “information initially contained in a record made for law

enforcement purposes continues to meet the threshold

requirements of Exemption 7 where that recorded information is

reproduced or summarized in a new document prepared for a no[n]-

law-enforcement purpose.” Abramson, 456 U.S. at 631–32.

For the reasons above, the Court concludes that DOJ has met

the threshold for invoking Exemption 7.

2. The Records Were Properly Withheld Pursuant to FOIA Exemption 7(A)

Exemption 7(A) permits an agency to withhold records from

disclosure if the records were “compiled for law enforcement

purposes, but only to the extent that the production of such law

enforcement records or information . . . could reasonably be

expected to interfere with enforcement proceedings.”

(b)(7)(A). “The principal purpose of Exemption 7(A) is to

prevent disclosures which might prematurely reveal the

government’s cases in court, its evidence and strategies, or the

nature, scope, direction, and focus of its investigations, and

thereby enable suspects to establish defenses or fraudulent

alibis or to destroy or alter evidence.” Maydak v. U.S. Dep’t of

Just.,

(D.C. Cir. 2000) (citations omitted).

To successfully invoke the exemption, the agency must show that

15 “disclosure (1) could reasonably be expected to interfere with

(2) enforcement proceedings that are (3) pending or reasonably

anticipated.” Mapother v. Dep’t of Just.,

(D.C. Cir. 1993) (emphasis omitted).

There is no dispute that the Review constitutes a pending

or reasonably anticipated law enforcement proceeding within the

meaning of FOIA Exemption 7(A). An ongoing investigation that is

likely to lead to future enforcement proceedings is enough to

invoke the exemption. See Ctr. for Nat. Sec. Stud. v. U.S. Dep’t

of Just.,

(D.C. Cir. 2003). The Court of

Appeals for the District of Columbia Circuit (“D.C. Circuit”)

has repeatedly explained that “‘[s]o long as the investigation

continues to gather evidence for a possible future criminal

case, and that case would be jeopardized by the premature

release of that evidence, Exemption 7(A) applies.’” Citizens for

Resp. & Ethics in Wash. v. U.S. Dep’t of Just.,

(D.C. Cir. 2014) (quoting Juarez v. Dep’t of Just.,

(D.C. Cir. 2008)). Thus, the Review’s investigation—

which has already resulted in criminal proceedings in the

District Court for the District of Columbia—meets the latter two

requirements for FOIA Exemption 7(A).

“CREW [does] not contest[] DOJ’s withholding of personally

identifying information in OIP and EOUSA’s spreadsheets,

including the names of witnesses or subordinate law enforcement

16 officers, their home or office locations, or other specific

addresses or locations.” Pl.’s Mot., ECF No. 18-1 at 15.

Accordingly, CREW has clarified that it only seeks segregable

salary and cost information and thus continues to seek: (1)

travel destinations, (2) dollar amounts of investigation

expenses; and (3) personnel salaries. Id. at 11-12. With regard

to the “dollar amount of investigation expenses,” the responses

to the FOIA request indicate that this information consists of

the salary information and travel information. See SOMF, ECF No.

21-1 ¶¶ 21, 22, 23. Accordingly, the Court does not consider

this a separate category of information.

DOJ argues that “[t]he release of salaries, travel details

and expenditures, and staffing information related to the Review

could reasonably be expected to interfere and undermine the

Review’s ongoing investigatory activities.” Def.’s Mot., ECF No.

16-1 at 14. Specifically, DOJ argues that:

1. [R]elease of travel information—frequency of domestic or foreign travel, would reveal details about the scope, direction, and nature of the investigation, including information of where witnesses or persons of interest are located.

2. [R]elease of salaries of the members of the Review would not only reveal the exact number of officials on the Review—which in [and] of itself would disclose details about the scope and breadth of the investigation, but would also provide their locality, relative experience, area of

17 expertise, and the occupational composition of the Review; the combination of this information speaks to the scope, direction, and nature of the investigation.

Id. at 14-15.

Two of the cases DOJ cites provide little support for its

argument. In neither Alyeska Pipeline Serv. Co. v. EPA,

(D.C. Cir. 1988) nor Swan v. SEC,

(D.C. Cir.

1996) were the records in any way similar to the records here.

Leopold v. CIA,

(D.D.C. 2015) provides some

support because the information sought there was expense

information; however, the context was not Exemption 7. For its

part, CREW cites no caselaw in support of its arguments that the

salary, travel, and expense information is not protected by

Exemption 7(A). See Pl.’s Mot., ECF No. 18-1 at 15; Pl.’s Reply,

ECF No. 23 at 7-8.

As a general matter, “an agency’s justification for

invoking a FOIA exemption is sufficient if it appears ‘logical’

or ‘plausible.’” Larson v. Dep’t of State,

(D.C. Cir. 2009) (citation omitted). Here, it appears logical

that disclosure of the travel information described supra “could

reasonably be expected to interfere with enforcement

proceedings.”

(b)(7)(A). CREW specifically seeks

travel destinations. Pl.’s Mot., ECF No. 18-1 at 15. However,

disclosure of travel destinations logically could reveal “the

18 nature, scope, direction, and focus of [the] investigation[] . .

. .” Maydak,

. Accordingly, the travel

information described supra is protected by Exemption 7(A).

It also appears logical that disclosure of the salaries of

the members of the Review “could reasonably be expected to

interfere with enforcement proceedings.”

(b)(7)(A). CREW disputes that release of individual salaries

or salaries in the aggregate would not reveal anything

substantive about the scope or direction of the Review, such as

who is being investigated, the potential offenses being

investigated, or the expertise of individuals assigned to the

investigation because CREW is unaware of any way to extrapolate

from salary information the identity of a prosecutor or

investigator. Pl.’s Reply, ECF No. 23 at 6. However, disclosure

of individual salaries would disclose information about the

scope and breadth of the Review. And because the members of the

Review are compensated on a highly structured pay scale,

disclosure of this information would provide the number of

members of the Review, and from that information could likely be

extrapolated the general professional credential of each member,

such as attorney, investigator, paralegal, etc. Disclosure of

this information logically could reveal at least the scope of

the investigation. See Maydak,

. Accordingly, the

19 specific salaries of each member of the Review are protected by

Exemption 7(A).

CREW cites no caselaw in support of its arguments that the

salary, travel, and expense information is not protected by

Exemption 7(A). Rather, CREW points to fact that the Office of

Special Counsel releases expenditure information without

interfering with or signaling the course of its investigation.

Pl.’s Mot., ECF No. 18-1 at 15. DOJ regulations mandate that the

Special Counsel Office release a biannual statement of costs.

See DOJ Order 2030.4G, Control of Funds under Apportionment.

These statements provide top-line totals and summaries of the

resources expended by investigators, see id.; breaking down

costs into various categories, such as: Personnel Compensation

and Benefits; Travel and Transportation of Persons; Rent,

Communications, and Utilities; Contractual Services; and

Supplies and Materials, see U.S. Dep’t of Just., Special

Counsel’s Office Statement of Expenditures October 19, 2020

through March 31, 2021. DOJ responds—and the Court agrees—that

the release of the Special Counsel information pursuant to DOJ

regulations does not mean that DOJ cannot protect similar

information in response to a FOIA request in an unrelated matter

and where DOJ demonstrates the harm that would result. Def.’s

Reply, ECF No. 21 at 5. In its concluding brief, CREW appears to

represent that it would accept similar aggregate information in

20 response to its FOIA request. See Pl.’s Reply, ECF No. 23 at 6

(“Ascertaining the aggregate or individual salaries of those

working on the investigation might yield some insight into the

resources that DOJ is deploying.”); id. at 7 (“Ascertaining the

dollar figures of expenses associated with the investigation”

would not be harmful in the aggregate. “In fact, if DOJ provided

the top-line figures of these expenses (which it is withholding

in addition to the line-item expenses), it would presumably

reveal even less about the substance of the Durham

investigation.”). However, CREW has not requested in the

alternative that the Court order the aggregate information to be

disclosed. Accordingly, the issue has not been briefed.

For all these reasons, the Court GRANTS summary judgment to

DOJ with respect to the withholding of the spreadsheets under

FOIA Exemption 7(A).

21 3. FOIA Exemptions 6 and 7(C)2

DOJ next argues that it may properly withhold names and

other identifying information about members of the Review and

other law enforcement personnel pursuant to FOIA Exemptions 6

and 7(C). See Def.’s Mot., ECF No. 16-1 at 16.3 CREW does not

challenge the withholding of this information under any FOIA

exemption. See Pl.’s Mot., ECF No. 18-1 at 15-16; Pl.’s Reply,

ECF No. 23 at 1. Because the “Court may not grant summary

judgment simply because the withholding [under a particular

exemption] was not challenged,” Tokar,

n.3

(quoting Winston & Strawn,

); the Court briefly

considers the application of these exemptions here.

2 CREW argues that “to the extent that any withholdings are supported by valid assertions of privacy interests under Exemption 6 or Exemption 7(C) that pertain to Attorney General Barr, they are outweighed by the public’s interest in understanding the extent and cost of the Attorney General’s highly unusual direct, personal involvement in the Durham investigation.” Pl.’s Mot., ECF No. 18-1 at 18. DOJ responds that it withheld any cost information related to any alleged travel by Attorney General Barr pursuant to Exemption 7(A) and did not argue that there was a privacy interest associated with alleged travel by Attorney General Barr. Def.’s Reply, ECF No. 21 at 9. CREW did not respond to this argument. See generally Pl.’s Reply, ECF No. 23. 3 DOJ acknowledges in its opening brief that the Review

instituted criminal proceedings in the District Court for the District of Columbia and therefore identified two members of the Review after the agencies sent their final response to CREW’s FOIA request. See Def.’s Mot., ECF No. 16-1 at 16 (citing Brinkmann Decl., ECF No. 16-3 ¶ 31). 22 FOIA Exemption 6 protects information contained in

“personnel and medical files and similar files the disclosure of

which would constitute a clearly unwarranted invasion of

personal privacy.”

(b)(6). “Information need not

be particularly intimate to merit protection under Exemption 6,

which shields from disclosure ‘personal information, such as

names and addresses,’ that, if released, ‘would create a

palpable threat to privacy.’” Garza v. U.S. Marshals Serv., No.

CV 16-0976,

, at *11 (D.D.C. Sept. 28, 2018)

(quoting Prison Legal News v. Samuels,

(D.C.

Cir. 2015)), aff’d, No. 18-5311,

(D.C. Cir. Jan.

22, 2020). FOIA Exemption 6 thus “has been construed broadly to

cover essentially all information sought from Government records

that ‘appl[y] to a particular individual.’” Pinson v. U.S. Dep’t

of Just.,

(D.D.C. 2016) (quoting U.S.

Dep’t of State v. Wash. Post Co.,

(1982)). For

this exemption to apply, the agency must “identify[] the

relevant privacy interests in nondisclosure and the public

interests in disclosure” and show that, “‘on balance, disclosure

would work a clearly unwarranted invasion of personal privacy.’”

Reed v. NLRB,

(D.C. Cir. 1991) (quoting

Nat’l Ass’n of Retired Fed. Emps. v. Horner,

(D.C. Cir. 1989)). “‘[T]he privacy interest of an individual in

avoiding the unlimited disclosure of his or her name and address

23 is significant.’”

(quoting Nat’l Ass’n of Retired Fed.

Emps.,

).

FOIA Exemption 7(C) operates similarly, protecting records

compiled for law enforcement purposes to the extent that their

disclosure “could reasonably be expected to constitute an

unwarranted invasion of personal privacy.”

(b)(7)(C). “The proper application of ‘privacy exemptions [6

and 7(C)] turns on a balance of ‘the individual’s right of

privacy against the basic policy of opening agency action to the

light of public scrutiny.’” Garza,

, at *12

(quoting CEI Wash. Bureau, Inc. v. Dep’t of Just.,

(D.C. Cir. 2006)). If the agency meets its Exemption 6

burden, it will also meet the “lighter burden” under Exemption

7(C). See Seized Prop. Recovery, Corp. v. U.S. Customs & Border

Prot.,

(D.D.C. 2007); see also Roth v.

U.S. Dep’t of Just.,

(D.C. Cir. 2011).

The Court concludes that DOJ has met its burden to withhold

names and other identifying information pursuant to FOIA

Exemptions 6 and 7(C). The Court accepts DOJ’s claim that

“disclosure . . . could subject these individuals to harassment

and to questioning as to the scope of their involvement in the

ongoing investigations of the Review.” Def.’s Mot., ECF No. 16-1

at 17 (citing Brinkmann Decl., ECF No. 16-3 ¶ 32; Jolly Decl.,

ECF No. 16-4 ¶ 19.). Because disclosure of the identities of

24 these law enforcement officials would not add greatly to the

public’s interest in scrutinizing agency action, the balance of

the interests weighs in favor of non-disclosure for both

exemptions.

The Court therefore GRANTS summary judgment to DOJ with

respect to the withholding of names and other identifying

information about members of the Review and other law

enforcement personnel under FOIA Exemptions 6 and 7(C).

4. FOIA Exemption 7(F)

DOJ contends that FOIA Exemption 7(F) protects from

disclosure information about witnesses for the Review. See

Def.’s Mot., ECF No. 16-1 at 18-19. CREW does not argue

otherwise. See Pl.’s Mot., ECF No. 18-1 at 15-16; Pl.’s Reply,

ECF No. 23 at 1. As above, because the Court has an independent

duty to determine whether a particular FOIA exemption is

appropriate, see Tokar,

n.3 (quoting

Winston & Strawn,

); the Court considers this

exemption here.

FOIA Exemption 7(F) allows an agency to withhold

information within law enforcement records that “could

reasonably be expected to endanger the life or physical safety

of any individual.”

(b)(7)(F). This exemption “has

been invoked to protect the identities of informants, sources,

and law enforcement personnel.” Michael v. U.S. Dep’t of Just.,

25 No. CV 17-0197 (ABJ),

, at *12 (D.D.C. Sept. 27,

2018) (citing Hammouda v. Dep’t of Just. Off. of Info. Policy,

(D.D.C. 2013); Fischer v. U.S. Dep’t of

Just.,

(D.D.C. 2010); Blanton v. Dep’t

of Just.,

(D.D.C. 2002)). In considering

claims for nondisclosure pursuant to Exemption 7(F), the Court

must “inquire[] whether or not there is a nexus between

disclosure and possible harm and whether the deletions were

narrowly made to avert the possibility of such harm.” Berard v.

Fed. Bureau of Prisons,

(D.D.C. 2016)

(citing Albuquerque Pub. Co. v. U.S. Dep’t of Just.,

(D.D.C. 1989)).

Here, DOJ invoked Exemption 7(F) to protect the identities

of witnesses called by the Review whose safety could potentially

be at risk if their names were released. See Def.’s Mot., ECF

No. 16-1 at 18-19. These witnesses fall squarely within the

category of individuals who warrant protection pursuant to this

exemption. As EOUSA attests in its affidavit, “there was a

reasonable likelihood that a threat of harm could be posed to

the individuals who assisted in the course of the investigation,

should the withheld material be released.” Jolly Decl., ECF No.

16-4 ¶ 23. Because Exemption 7(F) does not require a balancing

test, see Michael,

, at *12 (citing Raulerson v.

Ashcroft,

(D.D.C. 2002)); the Court’s

26 inquiry is satisfied with DOJ’s credible statement of possible

harm.

Accordingly, the Court GRANTS summary judgment to DOJ as to

the withholding of witness information pursuant to FOIA

Exemption 7(F).4

C. The Records Are Not Reasonably Segregable

FOIA mandates that an agency disclose “[a]ny reasonably

segregable portion of a record . . . after deletion of the

portions which are exempt” from disclosure.

(b).

Non-exempt portions of the record “must be disclosed unless they

are inextricably intertwined with exempt portions.” Mead Data

Cent., Inc. v. U.S. Dep’t of Air Force,

(D.C.

Cir. 1977). CREW argues that DOJ has not met its burden based on

the representations made in its affidavits. See Pl.’s Mot., ECF

No. 18-1 at 16-18. However, the Court has concluded that the

information in the spreadsheets is exempt under FOIA Exemption

7(A). Accordingly, there is no non-exempt portion to segregate.

4 Because the Court concludes that FOIA Exemption 7(F) protects witness information from disclosure, it need not determine whether FOIA Exemption 5 also applies to this information. 27 V. Conclusion

For the foregoing reasons, the Court GRANTS DOJ’s Motion

for Summary Judgment, ECF No. 16; and DENIES CREW’s Motion for

Partial Summary Judgment, ECF No. 18.

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge September 30, 2022

28