Am. Ctr. for Law & Justice v. U.S. Dep't of Justice
Am. Ctr. for Law & Justice v. U.S. Dep't of Justice
Opinion of the Court
I. INTRODUCTION
Four months before the 2016 presidential election, on June 27, 2016, former President Bill Clinton met with then Attorney General Loretta Lynch on board an airplane parked on the tarmac at a Phoenix airport. The meeting prompted speculation and attacks from critics as to whether the two had discussed the Department of Justice's investigation into Democratic nominee and former Secretary of State Hillary Clinton's email practices.
*16This Freedom of Information Act ("FOIA") suit concerns records generated in the wake of the June 2016 meeting. Plaintiff American Center for Law and Justice submitted a FOIA request to the FBI seeking a variety of records related to the Clinton-Lynch meeting. What remains of this case is quite narrow. At issue are Defendant Department of Justice's redaction of two records under FOIA Exemptions 6 and 7(C) and Exemption 5, respectively. For the reasons that follow, the court concludes that the redactions are proper and enters judgment in favor of Defendant.
II. BACKGROUND
A. Factual Background
On July 15, 2016, Plaintiff American Center for Law and Justice submitted a FOIA request to the Federal Bureau of Investigation ("FBI"), a component of Defendant Department of Justice. Compl., ECF No. 1, Ex. A, ECF No. 1-1. Plaintiff sought "any and all records pertaining to Attorney General Loretta Lynch's meeting with former President Bill Clinton on June 27, 2016, which occurred on her airplane at the Sky Harbor International Airport in Phoenix, Arizona." Id. at 1, 9, 17. On October 21, 2016, the FBI answered Plaintiff's FOIA request, reporting that it had not located any responsive records. Compl., Ex. C, ECF No. 1-3.
On August 10, 2017, however, the FBI reopened Plaintiff's FOIA request and informed Plaintiff that it had found potentially responsive records. Def.'s Mot. for Summ. J., ECF No. 14 [hereinafter Def.'s Mot.], Decl. of David M. Hardy, ECF No. 14-2 [hereinafter Hardy Decl.], ¶ 13. One month later, Plaintiff filed the action before the court, alleging that Defendant had improperly withheld records by failing to respond to Plaintiff's FOIA request. See generally Compl. On November 30, 2017, Defendant produced 29 pages of responsive records to Plaintiff. Joint Status Report, ECF No. 12, at 1. While the FBI released some pages in full, it withheld information found on other pages pursuant to FOIA Exemptions 5, 6, and 7(C). Id. ; Hardy Decl. ¶ 16.
B. Procedural Background
Following Defendant's production, both parties moved for summary judgment. Defendant argued that the FBI had conducted an adequate search and that its withholdings were proper. See generally Def.'s Mot. at 1. In support of its motion, Defendant submitted a declaration from David M. Hardy, the Section Chief of the FBI's Record/Information Dissemination Section. Hardy Decl. ¶ 1. Hardy described the FBI's searches for responsive records, id. ¶¶ 17-21, and the FBI's justifications for its withholdings, id. ¶¶ 22-48.
Plaintiff challenged the adequacy of the agency's search and several of Defendant's withholdings. See Pl.'s Cross-Mot. for Summ. J. & Mem. in Opp'n to Def.'s Mot., ECF No. 16 [hereinafter Pl.'s Mot.], at 5-14. Specifically, Plaintiff argued that the FBI improperly asserted Exemptions 6 and 7(C) to withhold FBI employees' names and contact information in two pages of released emails. See id. at 7-12 (citing Def.'s Mot., Hardy Decl., Ex. H, ECF No. 14-2 [hereinafter Disclosures], at FBI-7, FBI-12). Additionally, Plaintiff argued that the FBI improperly asserted Exemption 5 to withhold talking points contained within released emails. See id. at 7, 12-14 (citing Disclosures at FBI-2-3, FBI-23-24). Defendant subsequently conducted additional searches and released 18 additional pages, prompting Plaintiff to drop its challenge to the adequacy of the search. Joint Status Report, ECF No. 21 [hereinafter JSR], at 1-2; Def.'s Reply in Further Supp. of Def.'s Mot. & Opp'n to *17Pl.'s Cross-Mot. for Summ. J., ECF No. 22 [hereinafter Def.'s Reply], Third Decl. of David M. Hardy, ECF No. 22-2 [hereinafter Third Hardy Decl.], ¶¶ 2, 4-5. Plaintiff also dropped one of its initial claims regarding a withholding made under Exemptions 6 and 7(C), and it did not challenge any of the FBI's new withholdings. Pl.'s Reply in Supp. of Cross-Mot., ECF No. 24 [hereinafter Pl.'s Reply], at 1-2.
What remains of this dispute is quite limited. The parties' cross-motions concern only redactions of two disclosed records-one withholding under Exemptions 6 and 7(C) and one under Exemption 5.
III. LEGAL STANDARD
Most FOIA cases are properly resolved on motions for summary judgment. Brayton v. Office of the U.S. Trade Representative ,
FOIA "requires federal agencies to disclose information to the public upon reasonable request unless the records at issue fall within specifically delineated exemptions." Reporters Comm. for Freedom of Press v. FBI ,
To prevail in a FOIA action, an agency must demonstrate the adequacy of its search for relevant documents and show that the withheld material falls within one of nine statutory exemptions. Cable News Network, Inc. v. FBI ,
IV. DISCUSSION
As noted, the parties' dispute relates to two withholdings. See Pl.'s Reply at 1-2. The first concerns Defendant's redaction of the names of three recipients of an email under Exemptions 6 and 7(C). See Disclosures at FBI-12. The second is to Defendant's redaction of media talking points circulated by the director of DOJ's Office of Public Affairs pursuant to Exemption 5. The talking points appear twice *18in the record. See
A. Exemptions 6 and 7(C)
The court begins with Plaintiff's challenge to Defendant's withholding of names of three FBI employees who received an email forwarded by Shirlethia Franklin in the Office of the Attorney General regarding the scheduling of a conference call about the Clinton-Lynch meeting. See Disclosures at FBI-12. Defendant's declarant, Hardy, states that the redacted names are those of "FBI Special Agents ... and support personnel who were responsible for receiving, reviewing, analyzing, supervising and/or conducting the day-to-day operations of the FBI reflected in the responsive documents." Hardy Decl. ¶ 30.
Defendant withheld the names pursuant to Exemptions 6 and Exemption 7(C),
Defendant's reliance on Exemption 7(C) can be disposed of quickly. "To determine whether records are compiled for law enforcement purposes, [the D.C. Circuit] has long emphasized that the focus is on how and under what circumstances the requested files were compiled and whether the files sought relate to anything that can fairly be characterized as an enforcement proceeding." Clemente v. FBI ,
The court proceeds to analyze Defendant's withholdings under Exemption 6. To determine whether a withholding under Exemption 6 is proper, the court "balance[s] the private interest involved (namely, the individual's right of privacy) against the public interest (namely ... to open agency action to the light of public scrutiny)." Horowitz v. Peace Corps ,
Defendant's declarant, Hardy, gives three reasons why the individuals in this case have a substantial privacy interest in their names. See Hardy Decl. ¶ 30. First, Hardy states that because the individuals are privy to information regarding investigations, they "may become targets of harassing inquiries for unauthorized access to information regarding such investigations if their identities were released."
The countervailing public interest is, at best, a marginal one. Plaintiff argues that the significant public interest in the Clinton-Lynch meeting translates into a public interest in the "identities of the individuals who participated in the FBI communications." Pl.'s Mot. at 11. Not so. Plaintiff provides no support for its conclusory statement, nor does it find support in the law. "The only relevant public interest in the FOIA balancing analysis is the extent to which disclosure of the information sought would shed light on an agency's performance of its statutory duties or otherwise let citizens know what their government is up to." Lepelletier v. FDIC ,
*20Disclosing the names at issue would accomplish neither objective.
Accordingly, the court concludes that Defendant's withholding of the three names on FBI-12 under Exemption 6 was proper.
B. Exemption 5
Next, Plaintiff challenges Defendant's withholding under Exemption 5 of talking points drafted by Melanie Newman of DOJ's Office of Public Affairs concerning the Clinton-Lynch meeting. See Disclosures at FBI-2-3, FBI-23-24.
Exemption 5 allows an agency to withhold "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."
Defendant asserts that the talking points are both predecisional and deliberative. Specifically, Hardy states that the records are predecisional because they "were drafted before and in preparation for communications with the press and public" about the Clinton-Lynch meeting, and deliberative because "they were intended to facilitate or assist in the development of the Department of Justice's responses to inquiries about that meeting." Def.'s Mot. at 8. Plaintiff responds that the talking points are not "deliberative," as they are the "final" version of the talking points and do not contain preliminary assessments. Pl.'s Mot. at 12-13. Relatedly, seizing on Defendant's acknowledgment that the talking points contain facts, Plaintiff argues that, at a minimum, Defendant must segregate and disclose all facts contained within the talking points.
Before turning to these arguments, the court notes that Judge Kelly recently ruled in a related matter between these very same parties that the email at issue in this case is protected from disclosure by the deliberative process privilege. See Am. Ctr. for Law & Justice v. U.S. Dep't of Justice , No. 16-2188 (TJK),
Predecisional documents include those "generated as part of a continuous process of agency decision making, viz., how to respond to on-going inquires." Judicial Watch, Inc. v. U.S. Dep't of Homeland Sec. ,
Plaintiff's contention that these are "final" talking points, and therefore not predecisional, is unconvincing. As Judge Kelly succinctly explained in rejecting the same "finality" argument:
This argument fails to appreciate the nature of talking points generally and the particular context surrounding the June 28 talking points.[3 ] Talking points are typically documents prepared by government employees for the consideration of government decision-makers. There may be some circumstances where "talking points" are intended by agency decisionmakers to be followed literally such that they, in and of themselves, represent the agency's decision about what to say. But the "final" version of talking points prepared by more junior staffers for a more senior official is rarely the final decision about what the senior official will say. Rather, a senior official ... may elect to use all, some, or none of the talking points prepared for her. Perhaps to the chagrin of their junior staffers, senior officials have a tendency to improvise. And even when senior officials do follow their talking points, they often do not recite the points word-for-word.
Am. Ctr. for Law & Justice ,
Finally, Plaintiff's segregation argument bears no fruit. As a general matter, "[p]urely factual material usually cannot be withheld under Exemption 5 unless it reflects an 'exercise of discretion and judgment calls.' " Ancient Coin Collectors Guild v. U.S. Dep't of State ,
After reviewing the withheld material in camera, see Minute Order, Sept. 7, 2018, the court finds that the factual information contained in the talking points cannot be segregated from the deliberative process of creating them. Hardy accurately characterizes the talking points as a "selection of facts and source material." Hardy Decl. ¶ 44. These facts are thus "inextricably intertwined" with Defendant's deliberations because their disclosure would reveal the factual information that agency personnel decided to emphasize in response to media inquiries. In re Sealed Case ,
V. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment is granted, and Plaintiff's Cross-Motion for Summary Judgment is denied. A final, appealable order accompanies this Memorandum Opinion.
Although Plaintiff is challenging two emails containing the talking points, the withheld information is the same in both records. Compare Disclosures at FBI-2-3, with
Plaintiff filed the related action against the Department of Justice on November 2, 2016, challenging the Department of Justice's response to a FOIA request that is nearly identical to the one directed to the FBI at issue here. Compl. ¶ 23; Answer, ECF No. 10, ¶ 23.
Although the particular "June 28 talking points" referenced in Judge Kelly's decision appear to be different than the talking points at issue in this case, the points made by Judge Kelly apply with equal force here.
Reference
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- AMERICAN CENTER FOR LAW AND JUSTICE v. U.S. DEPARTMENT OF JUSTICE
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