U.S. Court of Appeals for the D.C. Circuit, 2017

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

Judicial Watch, Inc. v. U.S. Dep't of Justice
U.S. Court of Appeals for the D.C. Circuit · Decided October 20, 2017
282 F. Supp. 3d 242 (Federal Supplement, Third Series)

Counsel

*245Lauren M. Burke, Paul J. Orfanedes, Judicial Watch, Inc., Washington, DC, for Plaintiff., John Cuong Truong, U.S. Attorney's Office for the District of Columbia, Michael Hendry Baer, U.S. Department of Justice, Washington, DC, for Defendant., Unhappy with FBI's decision to withhold certain records, Judicial Watch has sued. The government now moves for summary judgment in its favor, arguing that it has met its FOIA obligations. Judicial Watch has also made a cross-motion for summary judgment in its favor. Upon review of the entire record, the Court agrees with the government; the Court will grant its motion and deny Judicial Watch's cross-motion., Rod Blagojevich was criminally charged with multiple corruption-related crimes in 2008 after a federal investigation into his activities. Decl. of Debra Riggs Bonamici (Bonamici Decl.) [Dkt. 13-3] ¶¶ 5-6. After two trials, Mr. Blagojevich was convicted and appealed to the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit ultimately affirmed his conviction, see United States v. Blagojevich , 854 F.3d 918 (7th Cir. 2017), and denied rehearing en banc , see Order, Blagojevich , No. 16-3254, ECF No. 53 (7th Cir. June 5, 2017). The parties briefed the instant motions while Mr. Blagojevich was continuing his appeal; the public record indicates that, at the time of this Memorandum Opinion's writing, the Supreme Court had most recently granted Mr. Blagojevich an extension of time to file a writ of certiorari to November 11, 2017. See Notice, Blagojevich , No. 16-3254, ECF No. 56 (7th Cir. August 4, 2017)., The FBI, a constituent entity of the Department of Justice, acknowledged receipt of the FOIA Request on May 23, 2012, and began searching for responsive records. Hardy Decl. ¶ 6. FBI RIDS employees searched FBI's Central Records System (CRS), a centralized records system encompassing the entire FBI organization, using the system's Automated Case Support (ACS), an electronic case management system. Id. ¶¶ 16-18; 22. RIDS searched ACS using a phonetic breakdown of the name "Rod Blagojevich" and then used further keyword searches within those records using the names of the individuals named in the FOIA request., After filing a series of administrative appeals with DOJ, Judicial Watch filed this lawsuit on September 21, 2016.2 On April 13, 2017, DOJ filed its Motion for Summary Judgment, see Def.'s Mot. Summ. J. (DOJ MSJ) [Dkt. 13]. Judicial Watch filed its Opposition, see Pl.'s Opp'n [Dkt. 15] and simultaneously filed a Cross-Motion for Summary Judgment, see Pl.'s Cross-Mot. Summ. J. (Judicial Watch MSJ) [Dkt. 16]. DOJ responded, see Def.'s Opp'n [Dkt. 17] and Def.'s Reply [Dkt. 18], and Judicial Watch submitted a final reply, see Pl.'s Reply [Dkt. 21]. The matter is now ripe for the Court's review., Section 552(a)(4)(B) of the U.S. Code grants subject matter jurisdiction over all actions brought under FOIA, and makes this an appropriate forum for venue purposes. 5 U.S.C. § 552(a)(4)(B) (2012) ("On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant."); see Jones v. Nuclear Regulatory Comm'n , 654 F.Supp. 130, 131 (D.D.C. 1987)., FOIA "represents a balance struck by Congress between the public's right to know and the government's legitimate interest in keeping certain information confidential." Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice , 331 F.3d 918, 925 (D.C. Cir. 2003). Under FOIA, federal agencies must release records to the public upon request, unless one of nine statutory exemptions apply. See NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 136, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) ; 5 U.S.C. § 552(b). To prevail in a FOIA case, a plaintiff must show that an agency has improperly withheld agency records. See Odland v. FERC , 34 F.Supp.3d 1, 13 (D.D.C. 2014). The defending agency must demonstrate that its search for responsive records was adequate, that any invoked exemptions actually apply, and that any reasonably segregable non-exempt information has been disclosed after redaction of exempt information. See id., *248See Sanders v. Obama , 729 F.Supp.2d 148, 154 (D.D.C. 2010). Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, the discovery and disclosure materials on file, and any affidavits, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment "bears the initial responsibility ... [to] demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment, a court must draw all justifiable inferences in favor of the nonmoving party and accept the nonmoving party's evidence as true. See Anderson , 477 U.S. at 255, 106 S.Ct. 2505. The nonmoving party, however, must provide more than the "mere existence of a scintilla of evidence .... [T]here must be evidence on which the jury could reasonably find for the [nonmoving party]." Id. at 252, 106 S.Ct. 2505., An agency may show its search was reasonable, such that summary judgment in its favor is warranted, through an affidavit by a responsible agency official, "so long as the declaration is reasonably detailed and not controverted by contrary evidence or evidence of bad faith." Sanders , 729 F.Supp.2d at 155. Accordingly, affidavits that include "search methods, locations of specific files searched, descriptions of searches of all files likely to contain responsive documents, and names of agency personnel conducting the search are considered sufficient." Citizens for Responsibility & Ethics v. Nat'l Archives & Records Admin. , 583 F.Supp.2d 146, 168 (D.D.C. 2008) (quoting Ferranti v. BATF , 177 F.Supp.2d 41, 47 (D.D.C. 2001) )., Judicial Watch does not contest the adequacy of the FBI search for responsive records. Pl.'s Opp'n at 1 ("Plaintiff seeks only the 302s and therefore takes no issue with the scope of Defendant's search."). Upon review of the affidavits submitted by DOJ, which detailed the database search as well as the records identified, the Court concludes that DOJ met its obligation to conduct a reasonable search., To prevail on a summary judgment motion in a FOIA case, a defending agency must demonstrate that any withheld information is exempt from disclosure, and that the agency segregated non-exempt materials. See 5 U.S.C. § 552(a)(4)(B). To meet this standard, agencies may provide "a relatively detailed *249justification through the submission of an index of documents, known as a Vaughn Index, sufficiently detailed affidavits or declarations, or both." James Madison Project v. U.S. Dep't of Justice , 208 F.Supp.3d 265, 285 (D.D.C. 2016) (quoting Ctr. for Int'l Envtl. Law v. U.S. Trade Representative , 237 F.Supp.2d 17, 22 (D.D.C. 2002) ); see also Vaughn v. Rosen , 484 F.2d 820, 827 (D.C. Cir. 1973)., The bigger point of contention is whether the investigation and prosecution of Rod Blagojevich is still a "pending law enforcement proceeding." Exemption 7(A) exists because Congress "recognized that law enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it came time to present their cases" in court. Robbins Tire & Rubber Co. , 437 U.S. at 224, 98 S.Ct. 2311. Still, Exemption 7(A) is not intended to "endlessly protect material simply because it was in an investigatory file." Id. at 230, 98 S.Ct. 2311. While little caselaw discusses at what point an investigation can be said to be no longer pending, "[u]sually the 'purpose and point' of an investigation expires when its goal, the holding of an adjudicatory proceeding, is reached. Hence, an enforcement proceeding can generally be equated with a trial." Moorefield v. U.S. Secret Serv. , 611 F.2d 1021, 1025 (5th Cir. 1980). Courts have held that "[a] pending appeal of a criminal conviction qualifies as a pending or prospective law enforcement proceeding for purposes of Exemption 7(A)," Dugan v. U.S. Dep't of Justice , 82 F.Supp.2d 485, 500 (D.D.C. 2015), and courts have also allowed agencies to assert Exemption 7(A) during the pendency of collateral habeas proceedings brought under 28 U.S.C. § 2255. See King v. U.S. Dep't of Justice , No. 08-cv-1555, 2009 WL 2951124 at *6 (D.D.C. Sept. 9, 2009) ; Johnson v. FBI , 118 F.Supp.3d 784, 793-95 (E.D. Pa. 2015)., However, the fact remains that (1) the FD-302s are records contained in a law enforcement investigative file that (2) is currently being directly appealed. That appeal may be very short-lived, but it is not the Court's role to guess how or when Rod Blagojevich's appeal may be resolved. Until the appeal is fully exhausted, disclosure of investigative materials could be reasonably expected to interfere with whatever occurs going forward. Rod Blagojevich has not exhausted his options for appeal before the courts, and, until that time at least, the government is entitled to preserve the strategies, theories, and impressions found in its investigative files., Because Rod Blagojevich was already convicted in a public trial, there is an additional concern that records otherwise exempt under Exemption 7(A) have passed into the public domain. "Under our public-domain doctrine, materials normally immunized from disclosure under FOIA lose their protective cloak once disclosed and preserved in a permanent public record." Cottone v. Reno , 193 F.3d 550, 554 (D.C. Cir. 1999). Had DOJ sought to withhold its entire file, it may have been appropriate for it to detail which, if any, records had passed into the public domain as a result of the trial. However, in this instance, only three records are at issue, none of which is alleged to have been introduced as an exhibit, or otherwise passed into the public domain. The Court concludes therefore that DOJ has adequately *251shown that the three FD-302s are exempt from disclosure under Exemption 7(A).

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

Opinion of the Court

C. Segregability

The only remaining question is whether DOJ adequately assessed whether any non-exempt portions of the withheld FD-302s are segregable from exempt information. While an agency may properly withhold records or parts of records under FOIA exemptions, it must release "any reasonably segregable portions" of responsive records that do not contain exempted information. Schoenman v. FBI , 575 F.Supp.2d 136, 155 (D.D.C. 2008) ; 5 U.S.C. § 552(b). An agency bears the burden of demonstrating that all reasonably segregable portions of a record have been disclosed, and may do so by "offering an affidavit with reasonably detailed descriptions of the withheld portions of the documents and alleging facts sufficient to establish an exemption." Pac. Fisheries, Inc. v. United States , 539 F.3d 1143, 1148 (9th Cir. 2008).

DOJ asserts that it made "every effort" to "provide plaintiff with all material in the public domain and with all reasonably segregable, non-exempt information." Hardy Decl. ¶ 25. "Agencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material." Sussman v. U.S. Marshals Serv. , 494 F.3d 1106, 1117 (D.C. Cir. 2007).

In this instance, the Court concludes that DOJ has met its burden to show no segregable information was inappropriately withheld. The only records withheld were three FD-302s, interview memos prepared by FBI investigators when speaking to potential witnesses. Exemption 7(A) is meant to apply broadly to an agency's "evidence and strategies, or the nature, scope, and focus of investigations," which can mean more than just simply the information contained therein. Maydak , 218 F.3d at 762. No evidence casts doubt on DOJ's sworn statement, and the Court finds that it has satisfied its obligation to release all segregable factual information. Accordingly, the Court finds that DOJ has met its burden.

CONCLUSION

For reasons stated above, the Court will grant DOJ's Motion for Summary Judgment [Dkt. 13], and will deny Judicial Watch's Cross-Motion for Summary Judgment [Dkt. 16]. Judgment will be entered in favor of DOJ. A memorializing order accompanies this Memorandum Opinion.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.