Citizens for Responsibility and Ethics in Washington v. U.S. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY
AND ETHICS IN WASHINGTON

Plaintiff,

v. Civil Action No. 11-754 (GK)

U.S. DEPARTMENT OF JUSTICE

Defendant.

MEMORANDUM OPINION

Plaintiff Citizens for Responsibility and Ethics in

Washington ("CREW") brings this action against Defendant United

States Department of Justice ("DOJ") under the Freedom of

Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff seeks

materials relating to DOJ investigations of U.S. Representative

Don Young.

This matter is presently before the Court on Defendant's

Motion for Summary Judgment on Behalf of the Criminal Division

and Federal Bureau of Investigation [Dkt. No. 31], Plaintiff's

Cross-Motion for Partial Summary Judgment [Dkt. No. 35] 1

Defendant's Motion for Summary Judgment on Behalf of the

Executive Office for United States Attorneys [Dkt. No. 37], and

Plaintiff's Cross-Motion for Partial _ $umma~y Judgment with

Respect to Executive Office for United States Attorneys [Dkt.

No. 41] . Upon consideration of the Motions, Oppositions,
Replies, and the entire record herein, and for the reasons

stated below, Defendant's Motions are granted in part and denied

in part, and Plaintiff's Cross-Motions are granted in part and

denied in part.
1
I. BACKGROUND

CREW is a non-profit corporation "committed to protecting

the rights of citizens to be informed about the activities of

government officials and to ensuring the integrity of government

officials." Compl. ~ 3 [Dkt. No. 1].

On January 24, 2011, CREW submitted identical FOIA requests

to three DOJ Components: the Criminal Division, the Federal

Bureau of Investigation ("FBI") and the Executive Office for

United States Attorneys ("EOUSA") It sought records related to

DOJ investigations of Rep. Young, "including but not limited to

DOJ's decision not to bring criminal charges against him."

Def. 's Statement of Undisputed Facts ~ 2 [Dkt. No. 3 7-4] All

three DOJ Components categorically denied CREW's requests under

FOIA Exemptions 6 and 7(C), 5 U.S.C. § 552(b) (6), (7) (C).

The FBI and the EOUSA notified CREW of its right to appeal

the decision to DOJ' s Office of Information Policy ( "OIP") . On

February 7, 2011, CREW appealed the FBI and the EOUSA denials.

1
Unless otherwise noted, the facts set forth herein are
undisputed and drawn from the parties' Statements of Undisputed
Material Facts submitted pursuant to Local Civil Rule 7(h).
-2-
On April 20, 2011, before receiving a decision from OIP, CREW

filed the present lawsuit.

The parties cross-moved for summary judgment regarding

DOJ' s "categorical" denial of CREW's FOIA requests. On January

10, 2012, this Court denied Defendant's Motion for Summary

Judgment and granted Plaintiff's Cross-Motion for Partial

Summary Judgment. Citizens for Responsibility and Ethics in

Wash. v. D.O.J., 840 F. Supp. 2d 226 (D.D.C. 2012) ("CREW I").

In CREW I, the Court held that the Government could not

categorically deny CREW's requests under Exemptions 6 and 7(C),

and ordered the DOJ Components to submit Vaughn indices

regarding any withheld or redacted documents. Id. at 236. The

Court explained that once the indices were submitted, it would

"make a specific individualized decision for each document as to

whether it should be redacted or totally withheld pursuant to

Exemption 6 and 7(C) ." Id.

On February 10 , 2012, Defendant filed a Motion for

Clarification regarding the scope of this Court's Order [Dkt.

No. 21] . On March 12, 2012, this Court issued a Minute Order

granting Defendant's Motion, and directed that Defendant's

Vaughn index "focus[] on those records related to U.S.

Department of Justice investigations of U.S. Representative Don

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Young involving allegations of bribery and other illegal conduct

in the matter known as 'Coconut Road.'" 2

The DOJ Components filed their Vaughn indices on April 9,

2012. On April 19, 2012, the FBI released 61 pages of material

with no redactions, 271 pages redacted in part, and withheld 3

pages in full under FOIA Exemption 7 (A) On or about April 23,

2012, the EOUSA released 123 pages of material with no

redactions, 1 page redacted in part, and withheld 4 8 pages in

full under FOIA Exemptions 3, 5, 6, and 7 (C). On May 2, 2012,

the Criminal Division released 31 pages of material with no

redactions, 31 pages redacted in part, and withheld 292 pages in

full under FOIA Exemptions 5, 6, and 7(C).

2
CREW acknowledges that the Court's order limited DOJ's
obligation to produce a Vaughn index to material related to
Coconut Road, but maintains in a footnote that DOJ is still
responsible for identifying and releasing any other documents
that are responsive to its FOIA request. Mem. in Partial Opp'n
to Def.'s Mot. for Summ. J. & In Support of Pl.'s Cross-Mot. for
Partial Summ. J. 4 n.2 [Dkt. No. 35] ("CREW's Opp'n to Criminal
Div. Mot."); Mem. in Partial Opp'n to Def.'s Mot. for Summ. J.
On Behalf of EOUSA & In Support of Pl.'s Cross-Mot. for Partial
Summ. J. 3 n.2 [Dkt. No. 40] ("CREW's Opp'n to EOUSA Mot.").

The Criminal Division did not address this assertion. The
EOUSA insists in a footnote that this argument is an attempt to
seek reconsideration of the Court's ruling on the Government's
motion for clarification. Def. 's Combined Reply Br. in Support
of Its Mot. for Summ. J. on Behalf of the EOUSA & Br. in Opp'n
to Pl.'s Cross-Mot. for Partial Summ. J. 21 n.4 [Dkt. No. 45].
CREW did not respond to that argument in its reply. Given that
neither the Plaintiff nor the Government has fully addressed
this issue, and that it has no bearing on the instant Motions
and Cross-Motions, the Court will not resolve it at this time.
-4-
 On September 25, 2012, DOJ filed its Motion for Summary

Judgment on Behalf of the Criminal Division and FBI [Dkt. No.

31]. On October 25, 2012, CREW filed its Opposition and Cross-

Motion for Summary Judgment [Dkt. Nos. 34, 35]. On November 19,

2012, DOJ filed its combined Opposition and Reply [Dkt. Nos. 38,

39]. On December 10, 2012, CREW filed its Reply [Dkt. No. 42].

On November 5, 2012, DOJ filed its Motion for Summary

Judgment on Behalf of the EOUSA [Dkt. No. 37]. On November 30,

2012, CREW filed its Opposition and Cross-Motion for Summary

Judgment [Dkt. Nos. 40, 41]. On January 15, 2013, DOJ filed its

combined Opposition and Reply [Dkt. Nos. 44, 45]. On February

14, 2013, CREW filed its Reply [Dkt. No. 46].

-5-
II. STANDARD OF REVIEW

The purpose of FOIA is to "pierce the veil of

administrative secrecy and to open agency action to the light of

public scrutiny." Morley v. C. I. A., 508 F. 3d 1108, 1114 (D.C.

Cir. 2007) (quoting Dep't of Air Force v. Rose, 425 U.S. 352,

361 (1976)) . FOIA "requires agencies to comply with requests to

make their records available to the public, unless the requested

records fall within one or more of nine categories of exempt

material." Oglesby v. Dep' t of Army, 79 F. 3d 1172, 1176 (D.C.

Cir. 1996) (citing 5 U.S.C. § 552 (a), (b)).

An agency that withholds information pursuant to a FOIA

exemption bears the burden of justifying its decision, Petroleum

Info. Corp. v. Dep't of the Interior, 976 F.2d 1429, 1433 (D.C.

Cir. 1992) (citing 5 U.S.C. § 552 (a) (4) (B)), and must submit an

index of all materials withheld, referred to as a "Vaughn

Index." Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973).

In determining whether an agency has properly withheld requested

documents under a FOIA exemption, the district court conducts a

de novo review of the agency's decision. 5 u.s.c.
§ 552 (a) (4) (B).

"FOIA cases are typically and appropriately decided on

motions for summary judgment." Gold Anti-Trust Action Comm.,

Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d

-6-
123, 130 (D.D.C. 2011) (quoting Defenders of Wildlife v. Border

Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). Summary judgment

will be granted when the pleadings, depositions, answers to

interrogatories, and admissions on file, together with any

affidavits or declarations, show that there is no genuine issue

as to any material fact and that the moving party is entitled to

judgment as a matter of law. See Fed. R. Civ. P. 56(c).

In a FOIA case, the court may award summary judgment solely

on the basis of information provided in affidavits or

declarations when they (1) "describe the documents and the

justifications for nondisclosure with reasonably specific

detail;" ( 2) "demonstrate that the information withheld

logically falls within the claimed exemption;" and (3) "are not

controverted by either contrary evidence in the record nor by

evidence of agency bad faith." Military Audit Project v. Casey,

656 F.2d 724, 738 (D. C. Cir. 1981). Such affidavits or

declarations are accorded "a presumption of good faith, which

cannot be rebutted by 'purely speculative claims about the

existence and discoverability of other documents.'" SafeCard

Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991)

(quoting Ground Saucer Watch, Inc. v. C.I.A., 692 F.2d 770, 771

(D.C. Cir. 1981)).

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III. ANALYSIS

The outstanding disputes fall into two categories. First,

CREW argues that the Criminal Division and the EOUSA have

improperly withheld information under Exemption 5. Second, CREW

argues that the Criminal Division and the EOUSA have improperly

withheld information under Exemptions 6 and 7 (C) . 3 Each claim

will be addressed in turn.

A. Exemption 5

Exemption 5 permits 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." 5 U.S.C. § 552 (b) (5). It "is interpreted to encompass,

inter alia, three evidentiary privileges: the deliberative

process privilege, the attorney-client privilege, and the

attorney work product privilege." Tax Analysts v. I.R.S., 294

F.3d 71, 76 (D.C. Cir. 2002) (citation omitted).

CREW challenges the withholding and redaction of documents

based on both the attorney work product doctrine, and the

deliberative process privilege. Because the majority of the

documents at issue were appropriately withheld under the

3
CREW has elected to not challenge the FBI's wi thholdings,
CREW's Opp'n to Criminal Div. Mot. 5 n.4., and to not challenge
the one document withheld by the EOUSA under FOIA Exemption 3,
CREW's Opp'n to EOUSA Mot. 4 n.4.
-8-
attorney work product doctrine, the Court addresses that issue

first.

1. Attorney Work Product Doctrine

The attorney work product doctrine protects materials

"prepared in anticipation of litigation." McKinley v. Bd. of

Governors of Fed. Reserve Sys., 647 F. 3d 331, 341 (D.C. Cir.

2011) (citing Fed. R. Civ. P. 26(b) (3)), cert. denied, 132 S.

Ct. 1026 (2012); E.E.O.C. v. Lutheran Soc. Servs., 186 F.3d 959,

968 (D.C. Cir. 1999) (noting that doctrine protects documents or

other information that "can fairly be said to have been prepared

or obtained because of the prospect of litigation" (citation

omitted)). It extends to documents prepared or obtained related

to "foreseeable litigation, even if no specific claim is

contemplated." Schiller v. N.L.R.B., 964 F.2d 1205, 1208 (D.C.

Cir. 1992) (citation omitted), abrogated on other grounds by

Milner v. Dep't of Navy, 131 S. Ct. 1259 (2011)

CREW fails to identify any specific document that it has

reason to believe was wrongfully withheld as attorney work

product. Rather, it asserts that the "D.C. Circuit has long

required agencies to justify invocation of the attorney work

product doctrine through the submission of detailed explanations

establishing the context in which the withheld information was

created." CREW's Opp'n to Criminal Div. Mot. 16; CREW's Opp'n to
-9-
EOUSA Mot. 14. It insists that the Government must identify the

circumstances surrounding the initiation of the investigation

into Young's conduct, the dates on which the investigation

commenced and concluded, and the specific roles various

employees played in the investigation. CREW's Opp'n to Criminal

Div. Mot. 17; CREW's Opp'n to EOUSA's Mot. 15.

There is no support for CREW's broad assertion that our

Court of Appeals requires the submission of such information.

Although such information is often relevant to a deliberative

process privilege claim, where an agency has to establish the

context in which certain materials were used in order to show

that a document is "both predecisional and deliberative," it is

not required in determining the applicability of the attorney

work product exemption. See Ancient Coin Collectors Guild v.

Dep't of State, 641 F.3d 504, 512 (D.C. Cir. 2011) (quoting

Mapother v. Dep't of Justice, 3 F.3d 1533, 1537 (D.C. Cir.

1993)); see also Wolfe v. Dep't of Health & Human Servs., 839

F.2d 768, 774 (D.C. Cir. 1988) (noting that first step in

evaluating deliberative process claim is to "examine the context

in which the materials are used").

Instead, the relevant inquiry in analyzing an attorney work

product claim is far narrower and focuses on whether the

documents in question were prepared in anticipation of
-10-
litigation. CREW does not explain why the contextual information

it seeks is necessary or relevant to that inquiry. Even if such

information was relevant to a claim of attorney work product

privilege, it would not be applicable in this case.

The Government has filed detailed, specific declarations

describing the various documents and explaining that they were

prepared in contemplation of litigation. CREW does not identify

any reason to doubt those explanations, and thus, they are

entitled to a presumption of good faith. See SafeCard Servs.,

926 F. 2d at 1200 (noting that "[a] gency affidavits are accorded

a presumption of good faith, which cannot be rebutted by purely

speculative claims") (internal quotation marks and citation

omitted).

Specifically, the EOUSA asserts that the eleven documents

it seeks to withhold are "records or portions of records that

reflect such matters as potential legal charges and claims,

[U.S. Attorney's Office] resource allocations, investigation

strategy including [Assistant U.S. Attorney] handwritten notes,

and [Assistant U.S. Attorney] evaluations and opinions relating

to a third-party's file" that were "prepared by or at the

request or direction of an [Assistant U.S. Attorney] in

anticipation of or during litigation." Decl. of Vinay J. Jolly ~

19 ("Jolly Decl.") [Dkt. No. 37-2]; see also Def.'s Mot. for
-11-
Summ. J. on Behalf of the EOUSA 15 (asserting that documents

were "prepared by or for the use of attorneys during a potential

investigation undertaken to determine whether federal criminal

charges were warranted") [Dkt. No. 37].

The detailed individual descriptions of each document in

the EOUSA's Vaughn index support its claims. For example,

specific entries in the EOUSA's Second Vaughn Index [Dkt. No.

3 7-3] describe individual documents as "notes regarding

next investigation steps" (Document 1) , "analysis regarding

legal claims, resources, and disposition" (Document 2) t

"notations and analysis of potential legal claims and trial

strategy" (Document 3) , and "legal citations and analysis

related to potential claims" (Document 4) . These are clearly the

type of documents protected by the work product doctrine. See

Senate of Puerto Rico v. Dep't of Justice, 823 F.2d 574, 586

(D.C. Cir. 1987) (noting that "internal memoranda concerning the

status of a criminal investigation, prepared by DOJ attorneys in

the course of their law enforcement duties, are surely the kind

of documents sheltered by the work product doctrine").

The Criminal Division has also established that the vast

majority of the documents it seeks to withhold under Exemption 5

-12-
are attorney work product. 4 The doctrine protects the records of

law enforcement investigations when the investigation is "based

upon a specific wrongdoing and represent[s] an attempt to garner

evidence and build a case against the suspected wrongdoer."

SafeCard Servs. , 92 6 F. 2d at 12 02; see also In re Sealed Case,

146 F.3d 881, 885 (D.C. Cir. 1998) (noting that "when government

lawyers prepare a document in the course of an active

investigation focusing upon specific events and a specific

possible violation by a specific party," they have sufficiently

established that the document was prepared because of the

prospect of litigation) (internal quotation marks and citation

omitted).

The Criminal Division asserts that the documents withheld

"were gathered as part of an investigation of specific

wrongdoing during which the government was attempting to build a

case against a suspected wrongdoer." Decl. of John E. Cunningham

III ~ 17 ("Cunningham Decl.") [Dkt. No. 31-2]; see also id. ~ 20

(noting that "[t] hese documents represent the trial attorneys'

distillation of facts, legal analyses, opinions, and

recommendations about whether to prosecute Rep. Young").

4
The Court evaluates Documents 40-43 and 53-58 under the
deliberative process privilege. See infra sec. III.A.2.
-13-
 In addition/ the Criminal Division s Vaughn index and the
1

Cunningham Declaration provide specific individualized

information about each document withheld that supports its

claims. See Criminal Division s 1
Second Vaughn Index [Dkt. No.

31-3] (describing documents as handwritten interview notes

(Documents 1 and 2) 1 a case summary with handwritten notations

(Document 4) 1 an outline and/or timeline (Document 29) 1 and

containing other similar descriptions) ; see also Cunningham

Decl. (describing Document 6 as "inventory summary 11
(~ 24);

Documents 7 1 8 1 and 48 as drafts of "Talking Points 11
discussing

potential charges 1 theories of prosecution 1 and summaries of the

evidence (~ 25); and Documents 9 and 17 as a litigation

outline/timeline (~ 26) 1 among other descriptions). Thus 1 the

Criminal Division has provided sufficient support for its claim

that the majority of the documents withheld under Exemption 5

are attorney work product.

The cases cited by CREW in support of its assertion that an

agency must provide additional context do not support its

position. The first case CREW cites is Senate of Puerto Rico 1

823 F.2d 574. Although our Court of Appeals did reject DOJ 1
S

claim of attorney work product privilege in that case 1 it did so

because the agency provided only a single 1 conclusory sentence

on the issue of whether the documents it sought to withhold were
-14-
prepared "in contemplation of litigation." Id. at 586 (noting

that DOJ asserted that the documents "were prepared by Civil

Rights Division attorneys in anticipation of litigation," but

made "no other reference . . to this essential element" of its

claim). As discussed above, this is the crucial element that an

agency must establish to justify withholding documents as

attorney work product, and the Government has successfully met

its burden on that element in the instant case.

The second case CREW cites, SafeCard Services, Inc. , 92 6

F.2d 1197, directly contradicts its claim that more information

is needed to justify the Government's claims of privilege.

Although the Court of Appeals did note that "the work product

exemption, read over-broadly, could preclude almost all

disclosure from an agency with substantial responsibilities for

law enforcement," 92 6 F. 2d at 12 03, it then stated "that where

an attorney prepares a document in the course of an active

investigation focusing upon specific events and a specific

possible violation by a specific party, it has litigation

sufficiently 'in mind' for that document to qualify as attorney

work product." Id. The Government has sufficiently demonstrated

that the withheld documents were created in the course of the

DOJ's investigation into Rep. Young's potentially illegal

actions with respect to the "Coconut Road" earmark.
-15-
 Moreover, the original FOIA request specifically sought all

documents related to DOJ's investigations of Rep. Young

concerning allegations of bribery and other illegal conduct. See

CREW I, 840 F. Supp. 2d at 231. Therefore, the scope of the

document request itself supports the Court's conclusion that the

Government's documents are attorney work product and its

affidavits should be credited. See Ancient Coin Collectors

Guild, 641 F. 3d at 509 ("Uncontradicted, plausible affidavits

showing reasonable specificity and a logical relation to the

exemption are likely to prevail.") (citing Larson v. Dep't of

State, 565 F.3d 857, 862 (D.C. Cir. 2009)).

One set of documents requires further · analysis. The

Criminal Division identified Document 40 as an email chain which

contains "ten emails sent between [Criminal Division] attorneys

and DOJ case agents" that "contain a discussion of an article

identified as 'Quiet Justice on Coconut Road Earmark . ' "

Cunningham Decl. ' 36. "One of the emails appears to have been

sent to a DOJ attorney by a reporter for Congressional

Quarterly. Specifically, the emails involve a discussion among

[Criminal Division] attorneys related to the previously

mentioned article, and further discuss possible responses from

the Criminal Division to a question proffered by the

Congressional Quarterly reporter to a DOJ attorney." Id.
-16-
Documents 41-43 and 53-58 are email chains that "contain a

discussion amongst [Criminal Division] attorneys related to the

previously mentioned email from the reporter, and further

discussing possible ramifications to their investigation should

the Criminal Division respond to the inquiry proffered by the

reporter." Id. ~ 37.

While the Criminal Division does not explain how these

documents were "prepared in anticipation of litigation," it is

not necessary to resolve this issue, which has not been

specifically addressed by the parties, because it is clear that

these documents are protected by the deliberative process

privilege. The Government has otherwise fully satisfied its

burden of demonstrating that the withheld records were prepared

in anticipation of litigation, and, thus, that they were

properly withheld as attorney work product under Exemption 5.

Finally, our Court of Appeals has ruled that "any part of a

document prepared in anticipation of litigation, not just the

portions concerning opinions, legal theories, and the like, is

protected by the work product doctrine." Judicial Watch, Inc. v.

Dep't of Justice, 432 F.3d 366, 371 (D.C. Cir. 2005) (citing Tax

Analysts v. I.R.S., 117 F.3d 607, 620 (D.C. Cir. 1997)). Thus,

the Court finds that the agency has met its burden to disclose

all segregable portions of otherwise exempt records. Sussman v.
-17-
Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007) (noting

that district court must make specific finding regarding

segregability of documents withheld under exemptions).

2. Deliberative Process Privilege

The deliberative process privilege protects udocuments

reflecting advisory opinions, recommendations, and deliberations

comprising part of a process by which governmental decisions and

policies are formulated, as well as other subjective documents

that reflect the personal opinions of the writer prior to the

agency's adoption of a policy.,, Tax Analysts, 2 94 F. 3d at 80

(citation omitted) . The ukey question" is whether disclosure of

the information uwould discourage candid discussion within the

agency." Access Reports v. Dep,t of Justice, 926 F.2d 1192, 1195

(D.C. Cir. 1991) (citation and internal quotation marks

omitted)

To invoke the deliberative process privilege, an agency

must show that a document is uboth predecisional and

deliberative." Ancient Coin Collectors Guild, 641 F.3d at 512

(quoting Mapother, 3 F.3d at 1537). A document is predecisional

if it was ugenerated before the adoption of an agency policy"

and deliberative if it ureflects the give-and-take of the

consultative process." Judicial Watch, Inc. v. Food & Drug

Admin., 449 F.3d 141, 151 (D.C. Cir. 2006) (citing Coastal
-18-
States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C.

Cir. 1980)).

First, the Court finds that the Criminal Division has

sufficiently established that Documents 40-43 and 53-58 are

predecisional and deliberative. The Cunningham Declaration

describes the content of these emails as discussions related to

"possible responses from the Criminal Division to a question

proffered by the Congressional Quarterly reporter to a DOJ

attorney" and "possible ramifications to their investigation

should the Criminal Division respond to the inquiry proffered by

the reporter." Cunningham Decl. ~~ 36-37. Thus, the documents

are predecisional because the documents were "generated before

the adoption of an agency policy," and deliberative because

there was a "give-and-take" regarding how to proceed. Judicial

Watch, 449 F.3d at 151 (citation omitted).

Other members of this District Court have found similar

documents covered by the deliberative process privilege. See

Judicial Watch, Inc. v. Dep't of Treasury, 796 F. Supp. 2d 13,

31 (D.D.C. 2011) (finding that deliberative process privilege

covered email exchange "reflect [ing] internal deliberations as

to how to respond to a press inquiry"); Judicial Watch, Inc. v.

Dep't of Homeland Sec., 736 F. Supp. 2d 202, 208 (D.D.C. 2010)

(holding that deliberative process privilege covered emails
-19-
"discuss [ing] how to respond to on-going inquiries from the

press") . It is clear that email exchanges between employees

regarding how to respond to pending press inquiries are the

types of discussions that agency employees are entitled to have

without fear of disclosure. See Tax Analysts, 2 94 F. 3d at 80

(noting that the privilege protects "internal deliberations");

see also Access Reports, 926 F.2d at 1195 (focusing inquiry on

whether disclosure "would discourage candid discussion within

the agency").

CREW's generic arguments regarding the deliberative process

privilege are not persuasive with regard to these specific

documents. First, CREW argues that Defendants have not provided

enough context to allow the Court to evaluate whether the

documents were appropriately withheld. They insist that the

Government must identify specific information, including the

"function and significance of the documents in the agency's

decision making process," the "nature of the decisionmaking

authority vested in the office or person issuing the disputed

documents," the "positions in the chain of command of the

parties to the documents," and "a timeframe during which these

activities took place." CREW's Opp'n to Criminal Div. Mot. 10

(citing Arthur Andersen & Co. v. I.R.S., 679 F.2d 254, 258 (D.C.

Cir. 1982) (internal quotation marks and citations omitted));
-20-
Reply Mem. in Support of Pl.'s Cross-Mot. for Partial Summ. J.

With Respect to the Criminal Division 3 [Dkt. No. 42].

There is no case law which mandates that an agency must

always provide the extremely detailed descriptive information

that CREW requests in order to justify withholding documents

under the deliberative process privilege. In fact, our Court of

Appeals has resisted making such categorical rules. See, e.g.,

Judicial Watch, 449 F.3d at 151 (refusing to adopt a categorical

rule that any undated entry cannot be considered predecisional).

Rather, the agency's burden is to submit Vaughn indices and

affidavits that are "specific enough so that the elements of the

privilege can be identified." Judicial Watch, Inc. v. Postal

Serv., 297 F. Supp. 2d 252, 257 (D.D.C. 2004).

As discussed above, the Criminal Division has provided

sufficient information for the Court to evaluate whether the

deliberative process privilege applies. Moreover, with respect

to these documents in particular, the Criminal Division has

identified many of the specifics that CREW requests. It

disclosed the dates of the emails, see Criminal Division's

Second Vaughn Index 5-6, 8-9, and identified the parties

involved with sufficient detail to understand the email

conversations without disclosing personal information that might

invade the privacy interests protected by Exemptions 6 and 7.
-21-
See infra sec. III.B. Thus, CREW's insistence that the

Government has failed to provide sufficient context is

unpersuasive.

Second, CREW argues that the Government must disclose any

documents or portions of documents that articulate and form the

basis for the final decision not to prosecute Rep. Young. 5

However, the deliberative process privilege does not turn on

identifying such a decision. As the Supreme Court has observed,

"the need to protect pre-decisional documents does not mean that

the existence of the privilege turns on the ability of an agency

to identify a specific decision in connection with which a

memorandum is prepared." N.L.R.B. v. Sears, Roebuck & Co., 421

U.S. 132, 151 n.18 (1975); see also Access Reports, 926 F.2d at

1196 ("Any requirement of a specific decision after the creation

of the document would defeat the purpose of the exemption. At

the time of writing the author could not know whether the

decisionmaking process would lead to a clear decision,

establishing the privilege, or fizzle, defeating it.")

Moreover, to the extent that the public is entitled to

disclosure of "the reasons which did supply the basis for an

agency policy actually adopted," see Sears, 421 U.S. at 152-53,

5
The Court notes that the basis for the Government's decision
not to prosecute Rep. Young is not a matter of public record.
-22-
there is no indication that these emails contain the final

decision not to prosecute Rep. Young or the reasons behind that

decision. Rather, the Vaughn index and the Cunningham

Declaration assert that these documents embody a discussion

within the agency about how to respond to a press inquiry. Thus,

CREW's insistence that portions of these documents should be

disclosed because they discuss the agency's decision not to

prosecute Rep. Young is not persuasive.

Third, CREW argues that the Government is withholding

documents that contain "purely factual information" that are not

protected by the deliberative process privilege. Purely factual

material cannot be withheld under Exemption 5 unless it

"reflects an exercise of discretion and judgment calls." Ancient

Coin Collectors Guild, 641 F.3d at 513 (citing Mapother, 3 F.3d

at 1539 (internal quotation marks omitted)). CREW criticizes the

Government's argument that certain fact summaries were

appropriately withheld because they involved an exercise of

judgment with regard to what evidence or testimony might be

relevant or significant to a prosecution. CREW notes that "a

report does not become part of the deliberative process merely

because it contains only those facts which the person making the

report thinks material." CREW's Opp'n to Criminal Div. Mot. 15

(citing Nat'l Whistleblower Ctr. v. Dep't of Health & Human
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Serv., 849 F. Supp. 2d 13, 37 (D.D.C. 2012) ( citations and

internal quotation marks o~itted))

No factual summaries are at issue here, and there is no

reason to believe that these email discussions contain "purely

factual material" that should be segregated and provided to

Plaintiff. Unlike documents that have been found to be purely

factual, these documents do not recount underlying facts

discovered in the investigation in a chronological fashion,

Mapother, 3 F.3d at 1540, or summarize information that already

exists in the public domain, Petroleum Info Corp., 976 F.2d at

1438. Even if some underlying facts were included in these

documents, they clearly "reflect an agency,s preliminary

positions or ruminations about how to exercise discretion,, and

thus are protected by the deliberative process privilege. Id. at

1435.

Therefore, the Court concludes that the Government has

established that Documents 40-43 and 53-58 are protected by the

deliberative process privilege. Moreover, the Court concludes,

based on the agency,s detailed descriptions of these documents,

that they are non-segregable. Sussman, 494 F. 3d at 1117

(requiring specific findings regarding segregability) .

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 B. Exemption 6 and Exemption 7(C)

Both the Criminal Division and the EOUSA withheld documents

and redacted portions of released documents claiming that the

information was protected by Exemption 6 and Exemption 7 (C) .

Exemption 6, applies to "personnel or medical files and similar

files the disclosure of which would constitute a clearly

unwarranted invasion of personal privacy." 5 U.S.C. § 552(b) (6).

Exemption 7 (C) applies to "records or information compiled for

law enforcement purposes" when disclosure "could reasonably be

expected to constitute an unwarranted invasion of personal

privacy." 5 U.S.C. § 552 (b) (7) (C).

Exemption 7 (C) is "more protective of privacy than

Exemption 6 and thus establishes a lower bar for withholding

material." A.C.L.U. v. Dep't of Justice, 655 F.3d 1, 6 (D.C.

Cir. 2011) (citation and internal quotation marks omitted)

(noting that "Exemption 7(C) permits withholding of

records if disclosure would constitute an 'unwarranted' invasion

of personal privacy, while Exemption 6 requires a '.clearly

unwarranted' invasion to justify nondisclosure") . Because CREW

does not dispute that the requested records are "records

compiled for law enforcement purposes" and thus subject to

Exemption 7 (C) , the Court need only consider whether the EOUSA

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and the Criminal Division properly invoked Exemption 7 (C) . See

id.

To evaluate whether records were appropriately withheld

under Exemption 7 (C) the Court must first ascertain whether a

"legitimate privacy interest is implicated." Sussman, 494 F. 3d

at 1115. If so, the requester must "(1) show that the public

interest sought to be advanced is a significant one, an interest

more specific than having the information for its own sake, and

( 2) show the information is likely to advance that interest."

Id. (citation omitted).

CREW's only objection to the Government's withholdings

under Exemptions 6 and 7(C) is that the Government has redacted

information related to Rep. Young, under the umbrella of

protecting the information of "third parties of investigative

interest." CREW insists that this Court has already decided that

Young's information is discoverable and should be disclosed,

citing CREW I, 840 F. Supp. 2d at 236.

In CREW I, this Court addressed the issue of whether DOJ

could categorically withhold all of the relevant documents under

Exemptions 6 and 7(C) "because Rep. Young has a privacy interest

in the requested records and Plaintiff has failed to articulate

a public interest that overrides his privacy interest." Id. at

230. The Court made several findings. First, the Court found
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that Rep. Young had a "substantial - although much diminished -

privacy interest." Id. at 233-34. Second, the Court found that

there was "substantial public interest" in examining how DOJ

enforces the "law governing the activities of federal

officials," particularly considering "the explicit direction

given by Congress to the DOJ to investigate the Coconut Road

matter." Id. at 235. Finally, the Court found that "the

balancing of Rep. Young's privacy interest against the public

interest in releasing the requested documents tips strongly in

favor of the public interest." Id. at 236.

CREW is correct that this Court has already found that

there is a legitimate privacy interest at issue, the public

interest is significant, and the information sought is likely to

advance that interest. Thus, CREW has satisfied its burden. See

Sussman, 494 F.3d at 1115.

The Government insists that the Court has only ruled on its

categorical denial, and points to the Court's observation that

"once a Vaughn index is filed, the Court will make a specific

individualized decision for each document as to whether it

should be redacted or totally withheld pursuant to Exemption 6

and 7 (C) . " CREW I, 840 F. Supp. 2d at 236. The Government is

correct that it is entitled to make individualized arguments as

to why particular documents might be appropriately withheld
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under those Exemptions, but it has failed to actually make those

individualized arguments with respect to Rep. Young.

The Vaughn indices, Declarations, and Briefs proffered by

the Government do not distinguish between Rep. Young and other

third parties. They do not at any point discuss this Court's

findings that Rep. Young's privacy interest is clearly

diminished by the fact that DOJ's investigations into his

activity are "already a matter of public record." See id. at

233. The Government also does not address this Court's

observation that the public interest in this case is enhanced by

the "added, and decidedly uncommon fact" that Congress passed a

specific piece of legislation directing DOJ to investigate

possible improprieties related to the "Coconut Road"

appropriation. Id. at 234.

Currently, the Government's argument is limited to

boilerplate language regarding private and public interests

under these Exemptions. It is sometimes appropriate to evaluate

the interests of broad categories of individuals such as agency

employees, suspects, and witnesses, as the Government did here

and to which CREW did not object. However, in a case cited by

the Government for support, Kimberlin v. Dep't of Justice, 139

F.3d 944 (D.C. Cir. 1998), our Court of Appeals conducted an

individualized analysis of the interests implicated by the
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potential release of documents related to a particular, named

individual. See id. at 949. The Government cannot treat Rep.

Young as merely a "suspect" whose name happens to be mentioned

in these records, because this does not fulfill its obligation

to balance the specific interests involved.

The burden is on the agency to justify its decision to

withhold information pursuant to a FOIA exemption, Petroleum

Info. Corp., 976 F.2d at 1433 (citing 5 U.S.C. § 552 (a) (4) (B)),

and the Government has not done so with regard to the

information related to Rep. Young. The EOUSA and the Criminal

Division are directed to review the documents and portions of

documents that have been withheld under Exemptions 6 and 7 (C)

and disclose such information, or justify more specifically why

it should not do so considering the specific interests

implicated.

C. In Camera Review

CREW has requested that this Court conduct an in camera

inspection of the withheld documents. 5 U.S.C. § 552(a) (4) (B)

grants courts the ability to "examine the contents of such

agency records in camera to determine whether such records or

any part thereof shall be withheld." The decision regarding

whether or not to grant in camera review is left to the broad

discretion of the district court. A.C.L.U. v. Dep't of Defense,

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628 F.3d 612, 626 (D.C. Cir. 2011) (quoting Ctr. for Auto Safety

v. E.P.A., 731 F.2d 16, 20 (D.C. Cir. 1984)).

Our Court of Appeals has made clear that when the agency

has met its burden by means of affidavits, "in camera review is

neither necessary nor appropriate." A.C.L.U., 628 F.3d at 626

(quoting Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv., 608 F.2d

1381, 1387 (D.C. Cir. 1979)). In this case, with the exception

of redacted information related to Rep. Young, the agencies have

provided affidavits and Vaughn indices that "set[] forth with

specificity the information withheld and the reasons preventing

its disclosure" under Exemption 5. A.C.L.U., 628 F.3d at 627.

Thus, CREW's request for in camera review of those documents is

denied.

IV. CONCLUSION

For the foregoing reasons, the Government's Motions for

Summary Judgment will be granted in part and denied in part, and

CREW's Cross-Motions for Summary Judgment will be granted in

part and denied in part. The Government will be ordered to

submit an updated Vaughn Index in conformity with this

Memorandum Opinion no later than August 1, 2013.

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 An Order shall accompany this Memorandum Opinion.

June 12, 2013
/s/i/~~. ~
Gladys Kessl~ ' ~
United States District Judge

Copies to: attorneys on record via ECF

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