Citizens for Responsibility v. DOJ

Filing

OPINION [1672056] filed (Pages: 13) for the Court by Judge Wilkins. [16-5138]

USCA Case #16-5138

Document #1672056

Filed: 04/21/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 3, 2017

Decided April 21, 2017
No. 16-5138

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-00592)

David L. Sobel argued the cause for appellant. With him
on the briefs was Adam J. Rappaport.
William E. Havemann, Attorney, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
were Benjamin C. Mizer, Principal Deputy Assistant Attorney
at the time the brief was filed, and Matthew M. Collette,
Attorney.
Before: TATEL, SRINIVASAN and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.

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WILKINS, Circuit Judge: Citizens for Responsibility and
Ethics in Washington (CREW) appealed from an order of the
District Court granting summary judgment in favor of the
United States Department of Justice (DOJ) and denying
CREW’s cross-motion for partial summary judgment. In
granting summary judgment, the District Court agreed that
Exemption 5 in the Freedom of Information Act (FOIA)
shielded certain Federal Bureau of Investigation (FBI)
correspondence and that Exemptions 6 and 7(C) could be
invoked to protect names and other personal information
contained in responsive records.
We reverse the District Court’s grant of summary
judgment. We conclude that the Government’s assertion of
Exemption 5 was untimely and, before ruling on Exemptions 6
and 7(C), a more particularized balancing of the interests at
stake is required.
I.
“In 2004, the Federal Bureau of Investigation (FBI)
opened a wide-ranging public corruption investigation into the
activities of former lobbyist Jack Abramoff. The investigation
yielded 21 guilty pleas or convictions by jury.” CREW v. DOJ
(CREW I), 746 F.3d 1082, 1087 (D.C. Cir. 2014). Two of those
convicted had been senior aides to former House of
Representatives Majority Leader Tom DeLay. Id. Although
the FBI never acknowledged whether DeLay was a subject of
their investigation, in August 2010, DeLay himself announced
that DOJ had informed him that it would not bring charges
against him. Id.
In October 2010, CREW filed a FOIA request with the
FBI, a component of DOJ. The request sought information
related to DOJ’s investigation of DeLay, including records

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related to DOJ’s investigation of relationships between DeLay
and fourteen specified individuals and entities.
DOJ declined to provide any requested documents on the
basis that, “because the requested records involved third
parties, they were generally exempt from disclosure and could
not be released absent express authorization from each third
party, proof of the third party’s death or a clear demonstration
that the public interest in disclosure outweighs the personal
privacy interest and that significant public benefit would result
from the disclosure of the requested records.” Id. at 1089
(internal quotation marks omitted).
After exhausting its administrative remedies, CREW filed
suit against DOJ. Id. The parties filed cross-motions for
summary judgment. Id. In support of its motion, DOJ
submitted a declaration asserting that “all responsive
documents were categorically exempt under Exemption 7(A)
and Exemptions 6 and 7(C).” Id. at 1090 (citations omitted).
The Government also invoked Exemptions 2, 3, 7(D) and 7(E)
to withhold some portions of the responsive material. 1 Id.
CREW specifically sought prosecution memoranda, but the
declaration stated that no prosecution memoranda were found
in the FBI’s case file. Id. at 1090 n.1. The District Court
granted DOJ’s motion for summary judgment, agreeing with
DOJ on the application of each cited exemption. Id.

1

Exemption 2 applies to information “related solely to the internal
personnel rules and practices of an agency”; Exemption 3 applies to
certain information “specifically exempted from disclosure by
statute”; Exemption 6 applies to “personnel and medical files and
similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy”; and Exemption 7 applies
to certain categories of “records or information compiled for law
enforcement purposes.” 5 U.S.C. § 552(b).

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On appeal, we reversed the grant of summary judgment
and remanded to the District Court. Id. at 1102. We found that
DOJ had “not met its burden to justify categorical withholding
under Exemption 7(A) or 7(C)” and had not “provided
sufficient detail at this stage for a court to determine whether a
portion of the requested records may be withheld under
Exemption 3, 7(D) or 7(E).” 2 Id.
Of particular relevance here, we noted the “weighty public
interest in shining a light on the FBI’s investigation of major
political corruption and the DOJ’s ultimate decision not to
prosecute a prominent member of the Congress for any
involvement he may have had.” Id. at 1092-93. “[T]he
relevant public interest,” we explained, “is not to find out what
DeLay himself was ‘up to’ but rather how the FBI and the DOJ
carried out their respective statutory duties to investigate and
prosecute criminal conduct.” Id. at 1093 (emphasis omitted).
Specifically, we noted the likelihood that the requested
information would “reveal much about the diligence of the
FBI’s investigation and the DOJ’s exercise of its prosecutorial
discretion: whether the government had the evidence but
nevertheless pulled its punches.” Id.
Foreshadowing the present controversy, we also noted that
persons other than DeLay might be mentioned in investigative
files and that those individuals “have a substantial privacy
interest in preventing disclosure of their names in law
enforcement files.” Id. at 1092 n.3. In recognition of this
privacy interest, “the names and identifying information of

2

CREW did not object to the District Court’s grant of summary
judgment with respect to the application of Exemption 2, which
applied only to internal FBI telephone and fax numbers. Id. at 1099
n.7.

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third parties contained in investigative files are presumptively
exempt.” Id. at 1096.
Since we had rejected the categorical withholding of
responsive documents, the task for DOJ on remand was to
“make a more particularized showing as to what documents or
portions thereof are exempt.” Id. The District Court then had
the responsibility to “weigh what information may be withheld
under Exemption 7(C) and whether any information is
reasonably segregable and may be disclosed.” Id.
After our decision, “the FBI ran its search for responsive
records anew, using the same parameters and garnering the
same results as its initial search.” CREW v. DOJ (CREW II),
174 F. Supp. 3d 415, 419 (D.D.C. 2016). The search yielded a
total of 328 pages of responsive material, 124 pages of which
were released to CREW, albeit with redactions. Id. at 420.
The FBI withheld in full the remaining 204 pages. Id. To
justify its redactions and withholding, the FBI invoked FOIA
Exemptions 3, 5, 6, 7(C), 7(D) and 7(E). 3 Id. The Government
again moved for summary judgment, which CREW opposed
with respect to the application of Exemptions 5, 6 and 7(C). Id.
In a March 30, 2016 Memorandum Opinion and Order, the
District Court again granted the Government’s motion for
summary judgment and denied a cross-motion for partial
summary judgment filed by CREW. Id. at 427.
II.
On appeal, CREW raises two issues. First, CREW asserts
that the District Court erred in permitting the FBI to rely on
Exemption 5, which it had not raised during the initial round of
3

Exemption 5 covers “inter-agency or intra-agency memorandums
or letters that would not be available by law to a party other than an
agency in litigation with the agency.” 5 U.S.C. § 552(b)(5).

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summary judgment. Second, CREW alleges error in the
District Court’s allowing the FBI to redact names of all
individuals other than DeLay and Abramoff that were
contained in responsive records.
A.
In FOIA cases, the Government generally “must assert all
exemptions at the same time, in the original district court
proceedings.” Maydak v. DOJ, 218 F.3d 760, 764 (D.C. Cir.
2000). “[T]he delay caused by permitting the government to
raise its FOIA exemption claims one at a time interferes both
with the statutory goals of efficient, prompt, and full disclosure
of information, and with interests of judicial finality and
economy.” Id. (citations omitted) (internal quotation marks
omitted).
We have recognized two exceptions to this general rule.
The first is for “extraordinary circumstances where, from pure
human error, the government failed to invoke the correct
exemption and will have to release information compromising
national security or sensitive, personal, private information
unless the court allows it to make an untimely exemption
claim.” Id. at 767. The second is “where a substantial change
in the factual context of the case or an interim development in
the applicable law forces the government to invoke an
exemption after the original district court proceedings have
concluded.” Id.
The Government does not contend that either exception is
applicable here. In fact, the District Court noted that the
Government’s “briefing contains no claim of changed factual
or legal circumstances, no mea culpa or acknowledgment [of]
mistake, and indeed no explanation at all as to its failure to

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assert Exemption 5 in regards to the FBI’s records in the
original proceedings.” CREW II, 174 F. Supp. 3d at 423.
Nevertheless, the District Court allowed the Government
to rely on Exemption 5. The District Court observed that
CREW’s objection was solely on waiver grounds and CREW
did not advance any substantive argument for why Exemption
5 would not cover the pages at issue. See id. at 421, 423-24.
In the District Court’s view, precluding the Government from
applying Exemption 5 “would not advance the policy goals
supporting the Maydak rule,” id. at 424, because CREW’s
failure to present objections to Exemption 5 on the merits
meant it had effectively conceded the issue and there was “no
occasion for delaying the process with presentation and
consideration of fresh arguments about the applicability of the
exemption,” id. at 423.
As we have previously explained, though, “[t]he
timeliness rule is concerned not just with efficiency in a given
case, but also with efficiency in the long run, and it disserves
this broader goal to permit untimely defenses, even after they
have been argued, to prevail.” Wash. Post Co. v. Dep’t of
Health & Human Servs., 795 F.2d 205, 209 (D.C. Cir. 1986).
It may well be that, in this particular case, the District Court
could just as quickly have considered and accepted the
Exemption 5 defense as rejected it as untimely. But this alone
does not answer the critical question of whether the ends of
promptness and efficiency are better served by nevertheless
preventing the Government from invoking a new exemption on
remand following an appeal. If Exemption 5 had been invoked
at the outset, we could have resolved the merits of its
application in the prior appeal. A robust timeliness rule
encourages the Government to present all its arguments the
first time around. Weakening that rule lessens the incentive.
In addition, requiring a FOIA requester to brief and argue the

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merits of newly asserted defenses – rather than simply
adverting to the timeliness rule – imposes additional costs on
that party. Cf. id. (“It would be grotesque to present the [FOIA
requester] with the bill for an entertainment which it alone
insisted should not have been staged.”). These considerations
suggest that a robust timeliness rule well serves FOIA’s goal of
a prompt and efficient process. Of course, there will be
“unusual situations, largely beyond the government’s control,”
Maydak, 218 F.3d at 767, in which other considerations
override those motivating the timeliness rule – this Court’s
previously articulated exceptions address such circumstances –
but the Government has not made any claim that this is such a
case.
Before the District Court, the Government asserted that it
had in fact raised Exemption 5 in the initial round of summary
judgment. See CREW II, 174 F. Supp. 3d at 422. On appeal,
the Government has abandoned that contention, in apparent
recognition of the fact that Exemption 5 was asserted only by
the DOJ’s Criminal Division to shield prosecution memoranda,
not by the FBI to protect the six pages of an electronic
communication that are now at issue. Id.
The Government continues to argue, though, that the fact
that the Criminal Division cited Exemption 5 in the original
proceedings precludes any inference of gamesmanship or
sandbagging with respect to the FBI’s initial failure to make a
similar assertion. That contention is belied by the fact that DOJ
utilized a decentralized process, in which the Criminal Division
and the FBI independently decided whether or not to release
responsive records that originated in their respective
components. Id. The decision of the Criminal Division to
invoke Exemption 5 therefore tells us nothing about why the
FBI chose not to cite it. In any event, the application of the

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Maydak timeliness rule does not require a finding of bad faith
or intentional gamesmanship.
As the Government’s invocation of Exemption 5 was
untimely and the Government has not provided a sufficient
basis for declining to apply the Maydak timeliness rule,
Exemption 5 cannot shield any of the information sought by
CREW in this appeal.
B.
We turn next to the question of whether summary
judgment was proper with respect to Exemptions 6 and 7(C).
FOIA’s Exemption 6 encompasses “personnel and
medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy,”
while Exemption 7(C) protects “records or information
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 constitute an
unwarranted invasion of personal privacy.”
5 U.S.C.
§ 552(b)(6)-(7). When information is claimed to be exempt
from disclosure under both provisions, courts “focus . . . on
Exemption 7(C) because it provides broader privacy protection
than Exemption 6 and thus establishes a lower bar for
withholding material.” CREW I, 746 F.3d at 1091 n.2 (internal
quotation marks omitted).
When examining an assertion of Exemption 7(C), a court
must “balance the [ ] privacy interest against the public interest
in disclosure.” Id. at 1091 (alteration in original). “At all
times, courts must bear in mind that FOIA mandates a strong
presumption in favor of disclosure, and that the statutory
exemptions, which are exclusive, are to be narrowly

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construed.” ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 5 (D.C.
Cir. 2011) (alteration omitted) (citations omitted) (internal
quotation marks omitted).
This dispute over the application of the personal privacy
exemptions centers on whether the Government is permitted to
redact the names (and other personally identifying information)
of individuals other than DeLay and Abramoff from responsive
records. These names fall into three general categories. First,
records may contain names of FBI or other federal government
personnel. CREW does not challenge the redaction of this
category of names. Second, individuals may be named or
otherwise identified who have not previously been publicly
implicated in the corruption investigation. Where, as here,
there is no “compelling evidence that the agency is engaged in
illegal activity,” such names are “categorically . . . exempt
from disclosure.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197,
1206 (D.C. Cir. 1991).
Finally, there is the third category: individuals who have
already been publicly identified – either through agency press
releases or testimony in open court – as having been charged,
convicted or otherwise implicated in connection with the public
corruption investigation that encompassed Abramoff and
DeLay. CREW attached eight press releases to its briefing
before the District Court, containing the names of sixteen such
individuals in addition to Abramoff. As explained below, these
individuals have a diminished privacy interest in certain
information that may be contained in the records at issue, and
therefore the categorical rule of non-disclosure announced in
SafeCard does not apply to them.
Determining whether the cited FOIA exemptions apply to
this third category of individuals requires a weighing of the
privacy interests and public interest at issue in this case. As we

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explained at length in our previous opinion, see CREW I, 746
F.3d at 1092-96, a “weighty public interest” is present here: the
interest in finding out “how the FBI and the DOJ carried out
their respective statutory duties to investigate and prosecute
criminal conduct.” Id. at 1092-93. This interest is served by
disclosures that “shin[e] a light on the FBI’s investigation of
major political corruption and the DOJ’s ultimate decision not
to prosecute a prominent member of the Congress for any
involvement he may have had.” Id. at 1093.
Moving to the opposing side of the scale, we have
observed that “individuals have an obvious privacy interest
cognizable under Exemption 7(C) in keeping secret the fact
that they were subjects of a law enforcement investigation.”
Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 894 (D.C.
Cir. 1995). “That privacy interest also extends to third parties
who may be mentioned in investigatory files, as well as to
witnesses and informants who provided information during the
course of an investigation.” Id. Even after an individual has
been convicted, we have recognized that the individual retains
a privacy interest in the facts of his conviction. See ACLU, 655
F.3d at 7; cf. U.S. Dep’t of Justice v. Reporters Comm. For
Freedom of the Press, 489 U.S. 749, 763-65 (1989). However,
privacy interests of individuals who have been convicted or
pled guilty “are weaker than for individuals who have been
acquitted or whose cases have been dismissed” and are “plainly
substantially weaker than the privacy interests of individuals
who have been investigated but never publicly charged at all.”
ACLU, 655 F.3d at 7; cf. Reporters Comm., 489 U.S. at 763
n.15 (“The common law recognized that one did not
necessarily forfeit a privacy interest in matters made part of the
public record, albeit the privacy interest was
diminished . . . .”).

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These initial observations do not resolve the question of
whether the Government redactions of names were proper in
this case. On the one hand, the substantial public interest
present here may outweigh privacy interests that have been
diminished by prior disclosures, including through guilty pleas
and convictions. On the other hand, a responsive document
could reveal new information about a person’s conduct, going
beyond the facts in the public record related to that person’s
conviction and sentencing. Under such circumstances, that
individual would retain a privacy interest in the non-disclosure
of the new information.
“Because the myriad of considerations involved in the
Exemption 7(C) balance defy rigid compartmentalization, per
se rules of nondisclosure based upon the type of document
requested, the type of individual involved, or the type of
activity inquired into, are generally disfavored.” Stern v. FBI,
737 F.2d 84, 91 (D.C. Cir. 1984). The privacy interests of
individuals who have not been convicted in connection with
this investigation – and even more so those who have not been
publicly linked with the investigation whatsoever – differ
greatly from those of individuals who were convicted or pled
guilty for their roles. Connecting the names of individuals to
information contained in the documents at issue could add
much, or not at all, to the public’s understanding of how the
Government carried out its investigation and decision not to
prosecute DeLay. There is little we can conclude in the
abstract. This area is simply not well-suited to categorical
determinations.
For this reason, we reverse the grant of summary judgment
and remand to the District Court. With respect to those
individuals with diminished privacy interests, the withholding
of information pursuant to Exemptions 6 and 7(C) must be
subjected to a particularized weighing of the public and privacy

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interests that would be implicated by the disclosure sought by
CREW. When conducting this balancing, it is CREW’s burden
to “show the information is likely to advance” the public
interest in learning whether DOJ pulled its punches. Nat’l
Archives & Records Admin. v. Favish, 541 U.S. 157, 172
(2004). For its part, the Government must account for the
privacy interests at stake, recognizing that previous disclosures
or admissions may have diminished those interests.
***
For the foregoing reasons, the grant of summary judgment
is reversed and we remand to the District Court for proceedings
consistent with this opinion.
So ordered.

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