Freedom Watch, Inc. v. Mueller

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FREEDOM WATCH, INC.,

Plaintiff,

v. No. 18-cv-88 (EGS)
ROBERT S. MUELLER III, et al.

Defendants.

MEMORANDUM OPINION

Plaintiff Freedom Watch, Inc., a non-profit organization,

brings this action against Defendants Robert S. Mueller III

(“Mr. Mueller”), United States Department of Justice (“DOJ”),

and Federal Bureau of Investigation (“FBI”) (collectively,

“DOJ”) under the Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552. Freedom Watch seeks to obtain certain records from DOJ

and the Special Counsel’s Office (“SCO”)—a component of DOJ—

concerning the investigation into Russia’s interference in the

2016 presidential election and related matters—specifically,

communications to and from the media pertaining to the

activities of the FBI, Mr. Mueller, and his staff.

Pending before the Court is DOJ’s motion for summary

judgment. Upon careful consideration of the motion, opposition,

and reply thereto, the applicable law, and the entire record

herein, the Court GRANTS DOJ’s Motion for Summary Judgment.
I. Background

The following facts—drawn from the parties’ submissions—are

undisputed, unless otherwise indicated. On May 17, 2017, then-

Acting Attorney General Rod J. Rosenstein appointed Mr. Mueller

to serve as Special Counsel for DOJ and authorized him to

investigate the Russian government’s efforts to interfere in the

2016 presidential election, including any matters arising from

that investigation. Defs.’ Ex. 2, ECF No. 36-4 at 25

(Appointment of Special Counsel to Investigate Russian

Interference with the 2016 Presidential Election and Related

Matters, Order No. 3915-2017). 1 Seven months later, on January 2,

2018, Freedom Watch submitted a FOIA request to DOJ, the FBI,

and the SCO, seeking to obtain the following:

[D]ocuments and records . . . that refer or
relate with regard to communications to and
from the media . . . concerning the activities
of [Mr.] Mueller and/or his staff as well as
the [FBI], concerning the investigation of
alleged Russian collusion and related matters
concerning the Trump Presidential Campaign and
the Trump Transition Team . . . .

E.g., id. at 20 (FOIA Request); Defs.’ Statement of Material

Facts (“Defs.’ SOMF”), ECF No. 36-5 at 1 ¶ 1; Pl.’s Counter

Statement of Material Facts (“Pl.’s SOMF”), ECF No. 37-1 at 2 ¶

1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
2
1; Defs.’ Reply to Pl.’s SOMF, ECF No. 38-1 at 1 ¶ 1. 2 Freedom

Watch subsequently narrowed its FOIA request to “records of

communications to and from the media rather than purely internal

communications.” Defs.’ SOMF, ECF No. 36-5 at 1-2 ¶ 2.

Before the FBI granted Freedom Watch’s request for

expedited processing on January 23, 2018, id. at 2 ¶ 4, Freedom

Watch commenced the instant action on January 15, 2018, id. at 2

¶ 3. DOJ’s Office of Information Policy (“OIP”) informed Freedom

Watch that its request for expedited processing had been granted

for the records maintained by the SCO and DOJ’s Public Affairs

Office (“PAO”) on February 20, 2018. Id. at 2 ¶ 5. On the same

day, DOJ filed the answer to Freedom Watch’s complaint. Id. at 2

¶ 6. Freedom Watch moved for summary judgment on March 23, 2018,

see generally Pl.’s Mot. for Summ. J., ECF No. 10; the parties

then filed status reports at the Court’s direction concerning

DOJ’s production of the requested materials, see generally

Docket for Civ. Action No. 18-88; and the Court denied as moot

Freedom Watch’s motion for summary judgment in light of the

Court’s Order directing DOJ to produce all non-exempt documents

responsive to Freedom Watch’s FOIA request, Min. Order of May

25, 2018.

2 From May 2017 to March 2019, Mr. Mueller investigated Russia’s
interference in the 2016 election. Elec. Privacy Info. Ctr. v.
DOJ, No. CV 19-810 (RBW), 2020 WL 1060633, at *2 (D.D.C. Mar. 5,
2020).
3
 DOJ released responsive materials to Freedom Watch,

withholding, in part, certain records under FOIA exemptions.

E.g., Defs.’ Ex. 1, ECF No. 36-3 at 57-80 (OIP’s Vaughn Index);

Defs.’ Ex. 2, ECF No. 36-4 at 37-42 (FBI’s Vaughn Index). 3

Following DOJ’s notice to the Court regarding a technical issue

with its searches of responsive documents, see Defs.’ Status

Report, ECF No. 24 at 1-3, Freedom Watch sought discovery and in

camera review, see, e.g., Min. Order of Nov. 26, 2018; Joint

Status Report, ECF No. 27 at 1-2; Pl.’s Resp. to Order of the

Court, ECF No. 29 at 1. This Court denied Freedom Watch’s

request for discovery and in camera review as premature,

finding, among other things, that the request was based on mere

conjecture. Min. Order of Jan. 3, 2019 (explaining that “there

3 DOJ invokes Exemptions 5, 6, and 7(C). E.g., Decl. of Vanessa
R. Brinkmann (“Brinkmann Decl.”), ECF No. 36-3 at 4 ¶¶ 6-8;
Decl. of David M. Hardy (“Hardy Decl.”), ECF No. 36-4 at 9 ¶ 18.
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).
Exemption 6 protects “personnel and medical files and similar
files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” Id. § 552(b)(6).
Exemption 7(C) exempts from disclosure “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.” Id. § 552(b)(7)(C).
And “[a] Vaughn index describes the documents withheld or
redacted and the FOIA exemptions invoked, and explains why each
exemption applies.” Prison Legal News v. Samuels, 787 F.3d 1142,
1145 n.1 (D.C. Cir. 2015) (citing Vaughn v. Rosen, 484 F.2d 820
(D.C. Cir. 1973); Keys v. DOJ, 830 F.2d 337, 349 (D.C. Cir.
1987)).
4
[was] no basis in reality to believe that [DOJ’s] disclosure” of

the technical issue “was, as Freedom Watch puts it, an ‘attempt

to shield themselves from the public seeing evidence of their

routinely leaking grand jury information to the media and other

disclosures for their tactical motivations’”).

On April 8, 2019, DOJ moved for summary judgment. See

Defs.’ Mot. for Summ. J. (“Defs.’ MSJ”), ECF No. 36 at 1; see

generally Defs.’ Mem. of Law in Supp. of Defs.’ MSJ (“Defs.’

Mem.”), ECF No. 36-1. On May 9, 2019, Freedom Watch filed its

opposition brief. See generally Pl.’s Opp’n, ECF No. 37. 4 On June

10, 2019, DOJ filed the reply brief. See generally Defs.’ Reply,

ECF No. 38. The motion is ripe and ready for the Court’s

adjudication.

II. Legal Standard

The “vast majority” of FOIA cases can be resolved on

summary judgment. Brayton v. Office of the U.S. Trade

Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A court may

grant summary judgment only if “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). Under FOIA, “the

underlying facts and the inferences to be drawn from them are

4 Freedom Watch’s opposition brief was not accompanied by a
proposed order as required by Local Civil Rule 7.1(c). See LCvR
7.1(c) (“Each motion and opposition shall be accompanied by a
proposed order.”).
5
construed in the light most favorable to the FOIA requester[,]”

and summary judgment is appropriate only after “the agency

proves that it has fully discharged its [FOIA] obligations . . .

.” Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citations

omitted).

When considering a motion for summary judgment under FOIA,

the court must conduct a de novo review of the record. See

5 U.S.C. § 552(a)(4)(B). The court may grant summary judgment

based on information provided in an agency’s affidavits or

declarations when they are “relatively detailed and non-

conclusory,” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200

(D.C. Cir. 1991) (citation omitted), and “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., 926 F.2d 1197 at 1200

(citation omitted).

III. Analysis

Freedom Watch challenges DOJ’s response to its FOIA request

on five fronts: (1) the adequacy of DOJ’s search; (2) the

withholding of documents under Exemption 5’s deliberative

process privilege; (3) the withholding of names and other

6
personal identifying information pursuant to Exemption 6;

(4) the withholding of certain portions in a single e-mail under

Exemption 7(C); and (5) DOJ’s segregability determinations.

Pl.’s Opp’n, ECF No. 37 at 3-13. The Court addresses each

challenge in turn.

A. The Adequacy of DOJ’s Search for Responsive Records

To demonstrate the adequacy of its search at the summary

judgment stage, DOJ “must show that it made a good faith effort

to conduct a search for the requested records, using methods

which can be reasonably expected to produce the information

requested.” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68

(D.C. Cir. 1990). “[T]he issue to be resolved is not whether

there might exist any other documents possibly responsive to the

request, but rather whether the search for those documents was

adequate.” Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir.

1984). “The adequacy of the search, in turn, is judged by a

standard of reasonableness and depends, not surprisingly, upon

the facts of each case.” Id. To meet its burden, an agency may

provide “a reasonably detailed affidavit, setting forth the

search terms and the type of search performed, and averring that

all files likely to contain responsive materials . . . were

searched.” Iturralde v. Comptroller of Currency, 315 F.3d 311,

313-14 (D.C. Cir. 2003) (citation and internal quotation marks

omitted). “If, however, the record leaves substantial doubt as

7
to the sufficiency of the search, summary judgment for the

agency is not proper.” Truitt v. Dep’t of State, 897 F.2d 540,

542 (D.C. Cir. 1990).

Here, DOJ has demonstrated that it has met its FOIA

obligations by conducting an adequate and reasonable search for

the responsive records from within OIP, SCO, and the FBI. DOJ’s

two declarations—(1) Brinkmann declaration; and (2) Hardy

declaration—“explain in reasonable detail the scope and method

of the search.” Kidd v. DOJ, 362 F. Supp. 2d 291, 295 (D.D.C.

2005) (citation and internal quotation marks omitted). “To

satisfy the dictates of FOIA, [DOJ] must, at a minimum, ‘aver

that it has searched all files likely to contain relevant

documents.’” Huntington v. U.S. Dep’t of Commerce, 234 F. Supp.

3d 94, 103 (D.D.C. 2017) (quoting Am. Immigration Council v.

Dep’t of Homeland Sec., 21 F. Supp. 3d 60, 71 (D.D.C. 2014)).

For the reasons explained below, the Court is satisfied that OIP

and the FBI conducted adequate searches for all locations likely

to contain responsive documents. See, e.g., Brinkmann Decl., ECF

No. 36-3 at 12 ¶ 25; Hardy Decl., ECF No. 36-4 at 7 ¶¶ 14-15.

1. OIP’s Search for Responsive Records

OIP—the office responsible for processing FOIA requests for

records from within OIP, DOJ’s six senior leadership offices,

and the SCO—located 5,881 pages of records responsive to Freedom

Watch’s FOIA request. Brinkmann Decl., ECF No. 36-3 at 2 ¶ 1, 5

8
¶ 9, 10 ¶ 21. Of particular relevance here, the first declarant

avers that “OIP searched for potentially responsive records

within two Offices: PAO and SCO.” Id. at 7 ¶ 13. OIP reasonably

determined that both PAO and the SCO likely had records

responsive to Freedom Watch’s FOIA request for two reasons:

(1) Freedom Watch specifically requested communications from the

SCO; and (2) PAO is the “office tasked with coordinating

relations of DOJ with the news media.” Id.

According to the first declarant, “OIP conducted broad

searches of unclassified email records and computer hard drives

for seventeen custodians across these Offices (fifteen within

PAO and two within SCO).” Id. And the two “SCO custodians were

public affairs professionals responsible for communications with

the media, and both were on detail from other DOJ components—one

from PAO and the other from the United States Attorney’s Office

for the Eastern District of Virginia (EDVA).” Id. at 8 ¶ 15.

OIP’s search for responsive records included a search of the

SCO’s general press inquiries electronic mailbox

(Specialcounselpress@usdoj.gov). Id. The first declarant notes

that “OIP did not search hard-copy/paper files” because “none

were identified during the course of OIP’s search efforts.” Id.

at 7 n.2.

With regard to potentially responsive records within PAO,

the first declarant avers that OIP used the date range of July

9
1, 2015 through December 31, 2017 based on Freedom Watch’s

proposed start date and cut-off date. Id. at 8 ¶ 16. As to the

SCO, OIP’s “initial search included all emails from the date the

email accounts were created through December 31, 2017.” Id.

According to the first declarant, OIP used the following search

terms for both PAO and the SCO: “‘SCO,’ ‘OSC,’ ‘Special

Counsel,’ or ‘Mueller’ combined with the terms ‘Russia*,’ ‘Trump

Campaign,’ ‘Trump Presidential Campaign,’ or ‘Trump

Transition.’” Id. at 8 ¶ 17. As previously noted, DOJ

experienced a technical issue with the initial searches, and OIP

re-ran the searches. Id. at 9 ¶ 18. In addition, OIP’s searches

covered potentially responsive text messages from PAO and the

SCO. Id. at 9 ¶ 19. Uncovering a total of 5,881 pages of

responsive records, OIP released, in part, 1,941 pages with

redactions to Freedom Watch; and OIP released, in full, the

remaining 3,939 pages without redactions. Id. at 12 ¶ 26.

2. FBI’s Search for Responsive Records

The FBI located 320 pages of responsive records. Hardy

Decl., ECF No. 36-4 at 9 ¶ 18. Typically, the FBI searches its

Central Records System that consists of “applicant,

investigative, intelligence, personnel, administrative, and

general files compiled and maintained by the FBI in the course

of fulfilling its integrated missions and functions as law

enforcement, counterterrorism, and intelligence agency to

10
include performance of administrative and personnel functions.”

Id. at 5 ¶ 11. Given Freedom Watch’s request for communications

to and from the media, however, the FBI reasonably determined

that a targeted search within its Office of Public Affairs

(“OPA”) would yield responsive records. Id. at 7 ¶ 14. OPA—the

office that “manages and oversees the FBI’s media relations”—

approves and coordinates communications between FBI personnel

and the media concerning FBI matters. Id. at 7 ¶ 15.

The FBI identified the OPA employees with media contacts,

and searched the e-mail accounts of those employees using the

date range of July 1, 2015 through December 31, 2017. Id. at 7-8

¶ 16. The FBI used search terms similar to OIP’s search terms.

Id. 5 The second declarant avers that OPA sent the responsive

records to the FBI’s Record/Information Dissemination Section

(“RIDS”), and RIDS used the search terms to run “an automated e-

mail search of the [OPA] employees’ e-mail accounts.” Id. at 8 ¶

17. RIDS located additional responsive records, adding to the

total pages of responsive records. Id. at 9 ¶¶ 17-18. Based on

5 The FBI used the following search terms: “‘SCO’ AND ‘Russia’;
‘SCO’ AND ‘Trump campaign’; ‘SCO’ AND ‘Trump Presidential
Campaign’; ‘SCO’ AND ‘Trump Transition’; ‘OSC’ AND ‘Russia’;
‘OSC’ AND ‘Trump campaign’; ‘OSC’ AND ‘Trump Transition’;
‘Special Counsel’ AND ‘Russia’; ‘Special Counsel’ AND ‘Trump
Campaign’; ‘Special Counsel’ AND ‘Trump Presidential Campaign’;
‘Special Counsel’ AND ‘Trump Transition’; ‘Mueller’ AND
‘Russia’; ‘Mueller’ AND ‘Trump Campaign’; ‘Mueller’ AND ‘Trump
Presidential Campaign’; ‘Mueller’ AND ‘Trump Transition[.]’”
Hardy Decl., ECF No. 36-4 at 8 ¶ 16.
11
the search and review, the second declarant avers that “[t]he

FBI found no information or leads logically leading to other

locations where responsive records would likely be located.” Id.

at 9 ¶ 17. In the final analysis, the FBI released 171 pages of

responsive records in full, and 122 pages in part, withholding

in full 27 pages. Id. at 9 ¶ 18.

3. DOJ’s Search Was Adequate Under the
Reasonableness Standard

DOJ argues—and the Court agrees—that “[r]easonableness, not

perfection, is . . . the Court’s guiding principle in

determining the adequacy of a FOIA search.” Defs.’ Mem., ECF No.

36-1 at 13 (citing cases). Indeed, “[t]he adequacy of an

agency’s search is measured by a standard of reasonableness, and

is dependent upon the circumstances of the case.” Truitt, 897

F.2d at 542 (footnote and internal quotation marks omitted).

Freedom Watch does not dispute the reasonableness standard. See

Pl.’s Opp’n, ECF No. 37 at 4. Rather, Freedom Watch contends

that DOJ’s search was inadequate because DOJ’s “statement [of

material facts] and declarations are deficient.” Id. In Freedom

Watch’s view, DOJ’s statement and declarations “fail to provide

a sufficient description of (1) the records searched; (2) who

conducted the search; and (3) the search process.” Id. DOJ

disagrees, arguing that “[n]othing in [Freedom Watch’s]

opposition brief contravenes the declarations of Ms. Brinkmann

12
or Mr. Hardy, or provides any basis to rebut the presumption

that their declarations, and the agencies’ searches, were

executed in good faith.” Defs.’ Reply, ECF No. 38 at 8.

Freedom Watch’s three arguments are unavailing. First,

Freedom Watch argues that DOJ’s description of the records

searched is inadequate because DOJ “merely restate[s] general

policy guidelines in an attempt to explain how [Freedom Watch’s]

FOIA request was searched” and the “FBI failed to describe

whether it searched paper records or all or any electronic

records other than certain email accounts of personnel.” Pl.’s

Opp’n, ECF No. 37 at 4. DOJ responds—and the Court agrees—that

“the Brinkmann and Hardy declarations set forth in detail how

OIP and the FBI, respectively, conducted tailored and thorough

searches for records responsive to [Freedom Watch’s] request.”

Defs.’ Reply, ECF No. 38 at 8.

It is undisputed that Freedom Watch only seeks “records of

communications to and from the media rather than purely internal

communications.” Defs.’ SOMF, ECF No. 36-5 at 2 ¶ 2. Contrary to

Freedom Watch’s assertion that the FBI’s determination as to its

search failed to account for paper and other electronic records,

see Pl.’s Opp’n, ECF No. 37 at 4, the Hardy declaration explains

that the FBI determined that “the most logical location for

‘communication’ records to or from the media would be within the

e-mails of specific authorized employees who have contact with

13
the media on a regular basis,” Hardy Decl., ECF No. 36-4 at 7 ¶

16. Furthermore, the Hardy declaration states that “[t]he FBI

found no information or leads logically leading to other

locations where responsive records would likely be located.” Id.

at 9 ¶ 17.

In Competitive Enterprise Institute v. National Aeronautics

& Space Administration, 989 F. Supp. 2d 74, 93 (D.D.C. 2013), a

member of this Court rejected a FOIA requester’s argument that

the “agency should have searched for paper records” because

“there [was] nothing to suggest that responsive documents

exist[ed] in paper form” and “[n]o leads emerged during [the

agency’s] search that required [the agency] to expand its search

to include paper records.” Similarly, in this case, the FBI did

not find any information or leads to extend its search beyond

the OPA records. See Hardy Decl., ECF No. 36-4 at 9 ¶ 17. The

Court therefore finds that the Hardy declaration provides a

rationale in a “relatively detailed” and “nonconclusory” fashion

for the FBI’s search. Goland v. CIA, 607 F.2d 339, 352 (D.C.

Cir. 1978).

Freedom Watch’s next argument—that the Brinkmann and Hardy

declarations fail to “disclose who carried out the searches,”

Pl.’s Opp’n, ECF No. 37 at 4—is foreclosed by case law in this

District. “FOIA does not require the disclosure of the names or

information about agency staff involved in processing FOIA

14
requests.” Kidder v. FBI, 517 F. Supp. 2d 17, 24 n.8 (D.D.C.

2007). Courts in this District have repeatedly rejected the

argument that an agency’s declaration must identify the

individuals, by name, who conducted the searches. See, e.g.,

Harrison v. Fed. Bureau of Prisons, 611 F. Supp. 2d 54, 65

(D.D.C. 2009) (finding that a FOIA requester’s “dispute[] that

[the agency’s] searches were adequate because they [did] not

identify, by individual name, who was conducting the search” was

a “frivolous argument”); Hillier v. CIA, No. CV 16-CV-1836

(DLF), 2018 WL 4354947, at *8 (D.D.C. Sept. 12, 2018) (same);

Bigwood v. U.S. Dep’t of Def., 132 F. Supp. 3d 124, 142-43

(D.D.C. 2015) (same). Moreover, as DOJ correctly points out,

“the identities of agency staff who searched for responsive

records would be exempt from disclosure under Exemption 6 if

[they] were contained in an agency record.” Defs.’ Reply, ECF

No. 38 at 9 (citing Harrison, 611 F. Supp. 2d at 65).

Although Freedom Watch is correct that agency declarations

must “describe what records were searched, by whom, and through

what processes,” Pl.’s Opp’n, ECF No 37 at 3 (quoting Sea

Shepherd Conservation Soc’y v. IRS, 208 F. Supp. 3d 58, 69

(D.D.C. 2016)), Freedom Watch ignores that the “by whom”

requirement permits an “agency [to] rely on an affidavit of an

agency employee responsible for supervising the search, even if

that individual did not conduct the search herself,” Truesdale

15
v. DOJ, 803 F. Supp. 2d 44, 50 (D.D.C. 2011) (citations and

internal quotation marks omitted). Here, the Brinkmann and Hardy

declarations meet that standard. See Brinkmann Decl., ECF No.

36-3 at 2 ¶ 1; see also Hardy Decl., ECF No. 36-4 at 2-3 ¶ 1.

Freedom Watch’s third argument—that DOJ’s search is

inadequate because DOJ’s declarants “did not say which search

terms provided what information, how the records were searched,

or what types of records were searched,” Pl.’s Opp’n, ECF No. 37

at 5—fares no better. DOJ argues—and the Court agrees—that

Freedom Watch “cites no authority for the proposition that an

agency must map out specifically which search terms yielded what

specific potentially responsive records, and [DOJ is] not aware

of any such requirement.” Defs.’ Reply, ECF No. 38 at 10.

“Courts in this [D]istrict, moreover, have declined to require

agencies to provide the granularity of detail in their

declarations that [Freedom Watch] seeks.” Coffey v. Bureau of

Land Mgmt., 249 F. Supp. 3d 488, 501 (D.D.C. 2017). And DOJ

retains “discretion in crafting a list of search terms that [it]

believe[s] to be reasonably tailored to uncover documents

responsive to the FOIA request.” Liberation Newspaper v. U.S.

Dep’t of State, 80 F. Supp. 3d 137, 146 (D.D.C. 2015) (citation

and internal quotation marks omitted). “Where the search terms

are reasonably calculated to lead to responsive documents, the

Court should not ‘micro manage’ the agency’s search.” Id.

16
(quoting Johnson v. Exec. Office for U.S. Att’ys, 310 F.3d 771,

776 (D.C. Cir. 2002)). Freedom Watch does not challenge DOJ’s

search terms, see Pl.’s Opp’n, ECF No. 37 at 5; thus, this Court

will not micro-manage DOJ’s searches. Neither will the Court

require additional details about DOJ’s searches because the

Brinkmann and Hardy declarations are “relatively detailed and

non-conclusory,” Mobley v. CIA, 806 F.3d 568, 581 (D.C. Cir.

2015).

The Court therefore finds that DOJ’s search is adequate

under the standard of reasonableness. See Truitt, 897 F.2d at

542. Accordingly, the Court GRANTS DOJ’s motion for summary

judgment as to the adequacy of the search.

B. Information Withheld Under Exemption 5’s Deliberative
Process Privilege

The Court next considers DOJ’s withholdings under Exemption

5. “Exemption 5 permits an agency to withhold materials normally

privileged from discovery in civil litigation against the

agency.” Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C. Cir.

1997). To withhold a document under Exemption 5, the “document

must meet two conditions: [1] its source must be a Government

agency, and [2] it must fall within the ambit of a privilege

against discovery under judicial standards that would govern

litigation against the agency that holds it.” Stolt–Nielsen

Transp. Grp. Ltd. v. United States, 534 F.3d 728, 733 (D.C. Cir.

17
2008) (citation and internal quotation marks omitted). Exemption

5’s deliberative process privilege is one of the privileges

against discovery, and that privilege protects from disclosure

documents that would reveal an agency’s deliberations prior to

arriving at a particular decision. Dent v. Exec. Office for U.S.

Att’ys, 926 F. Supp. 2d 257, 267–68 (D.D.C. 2013).

To fall within the scope of the deliberative process

privilege, withheld materials must be both “predecisional” and

“deliberative.” Mapother v. DOJ, 3 F.3d 1533, 1537 (D.C. Cir.

1993). A communication is predecisional if “it was generated

before the adoption of an agency policy” and deliberative if it

“reflects the give-and-take of the consultative process.”

Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866

(D.C. Cir. 1980). “[E]ven if the document is predecisional at

the time it is prepared, it can lose that status if it is

adopted, formally or informally, as the agency position on an

issue[.]” Id. The deliberative process privilege is to be

“construed as narrowly as consistent with efficient Government

operation.” Taxation with Representation Fund v. IRS, 646 F.2d

666, 667 (D.C. Cir. 1981).

Here, OIP withheld, in part, 116 pages of responsive

records that the Brinkmann declaration describes as

“communications and ‘Weekly Press Reports’ generated by,

exchanged within, and wholly internal to, the DOJ.” Brinkmann

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Decl., ECF No. 36-3 at 14 ¶ 32. OIP’s withholdings fall into two

categories: (1) “deliberative discussions regarding press

coverage and press inquiries”; and (2) “deliberative notes

regarding press coverage and press inquiries.” Defs.’ Mem., ECF

No. 36-1 at 20 (citing Brinkmann Decl., ECF No. 36-3 at 14 ¶

33); see also Defs.’ Ex. 1, ECF No. 36-3 at 58 (OIP’s Vaughn

Index). The Court will analyze each category in turn.

1. Deliberative Discussions Regarding Press
Coverage and Press Inquiries

The first category consists of three separate pages of

internal communications with redactions to each page. E.g.,

Brinkmann Decl., ECF No. 36-3 at 13 ¶ 29; Defs.’ Ex. 1, ECF No.

36-3 at 58. Specifically, the Brinkmann declaration states:

This category of records consists of internal
email communications from SCO staff to SCO’s
public affairs officials providing press
inquiries sent directly to them and noting
preliminary thoughts on if and how the SCO
might respond. In each instance, SCO staff are
reacting in real time, sharing their opinions
and suggestions for how to the SCO might
respond to particular press inquiries.

Brinkmann Decl., ECF No. 36-3 at 15 ¶ 35.

Freedom Watch hypothesizes that the communications involve

“the secret meetings with Peter Carr, spokesperson for the [SCO]

and media representatives.” Pl.’s Opp’n, ECF No. 37 at 8.

Freedom Watch contends that the redactions to DOJ’s internal

communications in the first category are neither pre-decisional

19
nor deliberative. See id. at 6-7. DOJ argues—and the Court

agrees—that the redactions to the communications are

deliberative and pre-decisional. Defs.’ Mem., ECF No. 20-23.

These documents squarely fall within the ambit of Exemption 5’s

deliberative process privilege “[b]ecause these documents

reflect intra-agency deliberations on communications with the

media.” Freedom Watch, Inc. v. NSA, 49 F. Supp. 3d 1, 8 (D.D.C.

2014), aff’d and remanded by 783 F.3d 1340 (D.C. Cir. 2015);

accord Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 736

F. Supp. 2d 202, 208 (D.D.C. 2010) (finding that agency properly

withheld under Exemption 5 “email messages involving

recommendations and evaluations for how to respond to

Congressional and media requests for information on [certain

topics]”). Exemption 5 covers these pre-decisional documents

because DOJ explains that “the redacted material contains

evaluative discussion and preliminary assessments by [DOJ] staff

as they analyzed, made recommendations, gave advice, and worked

toward formulating strategies for responding to the press.”

Defs.’ Mem., ECF No. 36-1 at 21; see also Brinkmann Decl., ECF

No. 36-3 at 17 ¶¶ 40-41.

To be sure, courts in this District have consistently held

that Exemption 5 protects from disclosure “media-related

withholdings” reflecting an agency’s “ongoing decisionmaking

about ‘how the agency’s activities should be described to the

20
general public.’” Competitive Enter. Inst. v. EPA, 12 F. Supp.

3d 100, 118 (D.D.C. 2014) (quoting Nat’l Sec. Archive v. FBI,

No. 88–1507, 1993 WL 128499, at *2 (D.D.C. Apr. 15, 1993));

accord Competitive Enter. Inst. v. EPA, 232 F. Supp. 3d 172, 188

(D.D.C. 2017) (finding that Exemption 5 protected documents

“clearly generated as part of a media strategy in response to

FOIA litigation” and that “correspondence [was] predecisional in

that it pre-dated the release of a public statement and [was]

deliberative because it involved personal opinions and thoughts

of staff members working to identify the options”).

2. Deliberative Notes Regarding Press Coverage and
Press Inquiries

The second category consists of 113 pages of notes in the

SCO’s “Weekly Press Report” that “document[s] and aid[s]

determinations as to whether and how to address press

inquiries.” Brinkmann Decl., ECF No. 36-3 at 15 ¶ 37. A Weekly

Press Report, generated by SCO’s public affairs officials, is a

“chart with seven columns that documents the following: (1) date

of the press inquiry; (2) the media outlet; (3) the name of the

reporter; (4) the method of contact; (5) the subject of the

inquiry; (6) research – which documents steps taken in

preparation of a response, if any; and (7) a proposed final

response to that inquiry.” Id. at 15-16 ¶ 37. The Weekly Press

Reports contain redacted information in the “research” and

21
“final response” columns, including “public affairs officials’

notes of what steps should be taken in order to develop a final

response to press inquiries, if any.” Defs.’ Mem., ECF No. 36-1

at 21. As such, the “final response” column “does not actually

include the ultimate (‘final’) response to the media.” Id.; see

also Brinkmann Decl., ECF No. 36-3 at 16 ¶ 38 (“Despite the

naming of [the “final response”] column, the information within

it does not consist of final responses to the press inquiries

but rather, recommendations regarding a potential response.”).

DOJ argues that the redacted information in the “research”

and “final response” columns is deliberative because: (1) the

notes summarize events, identify issues, and provide background

information in order to determine the most important issues and

information for senior SCO staff to review; and (2) SCO staff

made decisions to include certain factual information in the

notes during their research and preparation for a final

response. Defs.’ Mem., ECF No. 36-1 at 22. DOJ goes on to argue

that “the culling of other factual information was, in and of

itself, a necessary part of the SCO’s deliberations.” Id.

For its part, Freedom Watch appears to argue that the

withholdings are not deliberative because the redacted

information in the Weekly Press Reports do not discourage candid

discussion, and that its FOIA request seeks only the final

document that does not limit candid discussion. Pl.’s Opp’n, ECF

22
No. 37 at 8. 6 Freedom Watch correctly points out that the “key

question [is] . . . whether the disclosure of materials would

expose an agency’s decisionmaking process in such a way as to

discourage candid discussion within the agency and thereby

undermine the agency’s ability to perform its functions.” Id.

(quoting Dudman Commc’ns. Corp. v. Dep’t of the Air Force, 815

F.2d 1565, 1568 (D.C. Cir. 1987)). But the Brinkmann declaration

directly addresses this point. See Brinkmann Decl., ECF No. 36-3

at 17-18 ¶¶ 40-41.

The declarant avers that the “[p]rotected portions of these

records reflect proposed actions provided to the SCO public

affairs officials by SCO staff regarding how to respond to press

inquiries, notes on research and steps taken in the SCO’s

preparation for responding to media inquiries, and selected

media inquiries and publications flagged for awareness and

determinations on whether any further actions may be necessary.”

Id. at 17 ¶ 40. The declarant states that release of the SCO’s

public affairs officials’ notes would result in DOJ employees

becoming “reticent to document notes of their internal decision-

making processes, to share their opinions, and they would be

6 To support its arguments as to the Exemption 5 withholdings,
Freedom Watch cites 11 C.F.R. § 5.4(a)(4). Pl.’s Opp’n, ECF No.
37 at 8. That regulation, however, applies to the Federal
Election Commission, see 11 C.F.R. § 5.4(a)(4), and Freedom
Watch fails to explain its relevance. The Court therefore finds
that 11 C.F.R. § 5.4(a)(4) is inapplicable to this case.
23
circumspect in their willingness to engage in internal

discussions with other employees.” Id. at 17 ¶ 41. In addition,

the declarant avers that “[d]isclosure of such preliminary

assessments and opinions would make officials contributing to

pre-decisional deliberations much more cautious in providing

their views.” Id. Having reviewed the averments in the Brinkmann

declaration, the Court finds that the redacted information in

the Weekly Press Report qualifies for protection under the

deliberative-process privilege, and the disclosure of such

information would “stifle the creative thinking and candid

exchange of ideas necessary to produce good” work product.

Dudman, 815 F.2d at 1569.

Next, Freedom Watch contends that DOJ fails to “say whether

the communications, however, preliminary, were used in a final

decision.” Pl.’s Opp’n, ECF No. 37 at 7. Freedom Watch, however,

acknowledges DOJ’s assertion that the redacted information is

pre-decisional because “the discussions ‘pre-date the final

response.’” Id. (quoting Defs.’ Mem., ECF No. 36-1 at 20); see

also Defs.’ Mem., ECF No. 36-1 at 20 (“[T]he material is

predecisional because it either consists of ongoing discussions

that pre-dated the final responses to press inquiries, or

reflects pre-decisional deliberations.”). Indeed, “courts have

generally found that documents created in anticipation of press

inquiries are protected even if crafted after the underlying

24
event about which the press might inquire” because “[t]he idea

is that these sorts of documents reflect deliberation about the

decision of how to respond to the press[.]” Protect Democracy

Project, Inc. v. U.S. Dep’t of Def., 320 F. Supp. 3d 162, 177

(D.D.C. 2018) (collecting cases). Here, DOJ argues—and the Court

agrees—that “Ms. Brinkmann’s description of the materials

withheld under Exemption 5 is more than sufficient to establish

that they are pre-decisional.” Defs.’ Reply, ECF No. 38 at 12.

And Freedom Watch ignores the averment in the Brinkmann

declaration that clearly explains the withholdings “pertain to

entirely internal pre-decisional notes and emails among SCO

staff.” Brinkmann Decl., ECF No. 36-3 at 17 ¶ 40.

Freedom Watch’s next argument is that the withholdings are

not pre-decisional because the withholdings lost the protection

under Exemption 5’s deliberative process privilege when DOJ

“ch[ose] expressly to adopt or incorporate” the redacted

information in a final agency decision. Pl.’s Opp’n, ECF No. 37

at 7 (emphasis added) (quoting NLRB v. Sears, Roebuck & Co., 421

U.S. 132, 161 (1975)). In Sears, the Supreme Court held “that,

if an agency chooses expressly to adopt or incorporate by

reference an intra-agency memorandum previously covered by

Exemption 5 in what would otherwise be a final opinion, that

memorandum may be withheld only on the ground that it falls

within the coverage of some exemption other than Exemption 5.”

25
421 U.S. at 161 (“[W]hen adopted, the reasoning becomes that of

the agency and becomes its responsibility to defend.”). But the

United States Court of Appeals for the District of Columbia

Circuit (“D.C. Circuit”) rejected a FOIA requester’s argument

that the FBI waived the deliberative process privilege by

adopting a legal opinion by DOJ’s Office of Legal Counsel

(“OLC”) in dealings with Congress and the Office of the

Inspector General because the FOIA requester could not “point to

any evidence supporting its claim that the FBI expressly adopted

the OLC Opinion as its reasoning.” Elec. Frontier Found. v. DOJ,

739 F.3d 1, 11 (D.C. Cir. 2014). The same is true here. As noted

by DOJ, Freedom Watch “does not point to any evidence supporting

its claim that OIP expressly adopted any of the withheld

material in a final response.” Defs.’ Reply, ECF No. 38 at 12.

Finally, Freedom Watch concedes DOJ’s argument that the

redacted information in the Weekly Press Report reflects the

SCO’s pre-decisional deliberative process because such

information constitutes “the culling of other factual

information [that] was, in and of itself, a necessary part of

the SCO’s deliberations.” Defs.’ Mem., ECF No. 36-1 at 22; see

also Pl.’s Opp’n, ECF No. 37 at 5-8. Nonetheless, “the Court

still has an independent duty to ‘determine for itself whether

the record and any undisputed material facts justify granting

summary judgment.’” Tokar v. DOJ, 304 F. Supp. 3d 81, 94 n.3

26
(D.D.C. 2018) (quoting Winston & Strawn, LLP v. McLean, 843 F.3d

503, 505 (D.C. Cir. 2016)). Based on DOJ’s description of the

redacted information in the Weekly Press Report, see, e.g.,

Defs.’ Mem., ECF No. 36-1 at 21-22; Brinkmann Decl., ECF No. 36-

3 at 15-18 ¶¶ 37-41; Defs.’ Ex. 1, ECF No. 36-3 at 58, the Court

is satisfied that the redacted information that reflects the

culling of certain factual information is exempt under Exemption

5, see Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641

F.3d 504, 513-14 (D.C. Cir. 2011) (concluding that Exemption 5

covered factual summaries because those documents “were culled

by the Committee from the much larger universe of facts

presented to it” and reflected an “exercise of discretion and

judgment calls”).

In sum, the Court therefore finds that DOJ has carried its

burden of demonstrating that the withholdings fall under

Exemption 5’s deliberative process privilege. See Coastal States

Gas Corp., 617 F.2d at 868 (“[T]he agency has the burden of

establishing what deliberative process is involved, and the role

played by the documents in issue in the course of that

process.”). Accordingly, the Court GRANTS DOJ’s motion for

summary judgment as to Exemption 5.

C. Information Withheld Under Exemptions 6 and 7(C)

The Court next turns to the withholdings under Exemptions 6

and 7(C). DOJ withheld six narrow categories of information

27
under Exemption 6: (1) the names and personal identifying

information of certain DOJ and FBI employees based on the

sensitive nature of the SCO’s work and the law enforcement

conduct; (2) the reporters’ non-public contact information;

(3) the third parties’ names and personal identifying

information merely referenced in the records; (4) the non-public

information of third parties contained in e-mails from

reporters; (5) information concerning DOJ employees and

reporters prior to the SCO’s investigation; and (6) details

about purely personal material pertaining to DOJ employees,

reporters, and third parties (i.e. vacation details, holiday

plans, and religious observances). Defs.’ Mem., ECF No. 36-1 at

24-29. And DOJ withheld portions of a single e-mail

communication under Exemption 7(C), which contained information

that a member of the media believed was potentially relevant to

the SCO’s investigation. Id. at 30 (citing Brinkmann Decl., ECF

No. 36-3 at 25-26 ¶¶ 56-58).

To begin, “[t]he privacy interest in Exemption 6 is

narrower than in Exemption 7(C), so if the withholdings satisfy

the former, no examination of the latter is necessary.” McCann

v. U.S. Dep’t of Health & Human Servs., 828 F. Supp. 2d 317, 322

(D.D.C. 2011); see also Prop. of the People, Inc. v. DOJ, 405 F.

Supp. 3d 99, 112 (D.D.C. 2019) (Sullivan, J.) (“Both exemptions

are foundationally similar.”). “Exemption 6 protects

28
withholdings under the following criteria: first, the

information must be contained within ‘personnel and medical

files and similar files’; second, the disclosure of the

information ‘would constitute a clearly unwarranted invasion of

personal privacy’; and third, if the first two requirements are

met, the privacy interest must be weighed against the public

interest in disclosure.” McCann, 828 F. Supp. 2d at 322 (quoting

5 U.S.C. § 552(b)(6); citing Armstrong v. Exec. Office of the

President, 97 F.3d 575, 582 (D.C. Cir. 1996)).

1. Similar Files

DOJ satisfies the first requirement of the Exemption 6

inquiry because the Supreme Court has broadly interpreted the

phrase “similar files,” recognizing that Exemption 6 covers all

“information which applies to a particular individual.” U.S.

Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982); see

also Judicial Watch, Inc. v. FDA, 449 F.3d 141, 152 (D.C. Cir.

2006) (explaining that Exemption 6 covers “not just files, but

also bits of personal information, such as names and

addresses”). “[I]nformation about an individual should not lose

the protection of Exemption 6 merely because it is stored by an

agency in records other than ‘personnel’ or ‘medical’ files.”

Wash. Post Co., 456 U.S. at 601.

Nonetheless, Freedom Watch relies on Simpson v. Vance, 648

F.2d 10 (D.C. Cir. 1980) for the proposition that “the

29
information sought – particularly the information concerning

government personnel and third party information received from

reporters – is not considered a personnel file[.]” Pl.’s Opp’n,

ECF No. 37 at 10. In Simpson, the D.C. Circuit ruled that “[t]he

[requested] information contained in [the State Department’s

publication] [did] not fall within the meaning of ‘personnel’

files or ‘similar’ files, and the additional fact that foreign

service personnel [were] subject to terrorist attacks [did] not

change the personal quality of the information contained in the

materials at issue: no fact of an intimate nature or no

embarrassing disclosure suddenly appear[ed] because [the D.C.

Circuit was] told that the information might be abused by

terrorists once disclosed.” 648 F.2d at 17.

Freedom Watch is wrong on the law, and the D.C. Circuit’s

decision in Simpson upon which Freedom Watch relies is no longer

good law. See Wash. Post. Co., 456 U.S. at 602 n.5; see also

Pl.’s Opp’n, ECF No. 37 at 9-10. As DOJ correctly notes, “[t]wo

years after that decision, the Supreme Court, in [United States]

Department of State v. Washington Post Company, 456 U.S. 595

(1982), abrogated Simpson and held that the ‘similar files’

language in Exemption 6 must be interpreted broadly, and that

any information in government records that ‘applies to a

particular individual’ meets the threshold for Exemption 6

protection.” Defs.’ Reply, ECF No. 38 at 13 (quoting Wash. Post.

30
Co., 456 U.S. at 602). Freedom Watch’s reliance on Simpson is

perplexing given that a member of this Court relied on the

Supreme Court’s decision in United States Department of State v.

Washington Post Company in a FOIA case brought by Freedom Watch,

and explained that the “similar files” categorization “broadly

include[s] documents containing purely personal information,”

such as “personal e-mail addresses, phone numbers, and details

of individuals’ personal lives.” Freedom Watch, Inc. v. NSA, 49

F. Supp. 3d at 9 (citations and internal quotation marks

omitted). More troubling is that one of the cited cases in

Freedom Watch’s opposition brief expressly states that “the

Supreme Court issued its opinion in [United States] Department

of State v. Washington Post [Company], 456 U.S. 595 (1982),

rejecting this [C]ircuit’s rule, see Simpson v. Vance, 648 F.2d

10, 13 (D.C. Cir. 1980), that the phrase ‘similar files’ in

§ 552(b)(6) is limited to files within which may be found

‘intimate details’ and ‘highly personal’ information.” Arieff v.

U.S. Dep’t of Navy, 712 F.2d 1462, 1466 (D.C. Cir. 1983); see

also Pl.’s Opp’n, ECF No. 37 at 9 (citing Arieff, 712 F.2d at

1468-69).

2. Privacy Interests

The Court next considers the second requirement—“the

information must be of such a nature that its disclosure would

constitute a clearly unwarranted invasion of personal privacy.”

31
Wash. Post Co., 456 U.S. at 598. “This, in turn, requires a two-

part analysis.” SAI v. Transp. Sec. Admin., 315 F. Supp. 3d 218,

259 (D.D.C. 2018). First, the Court must “determine whether

disclosure of the files would compromise a substantial, as

opposed to de minimis, privacy interest, because [i]f no

significant privacy interest is implicated . . . FOIA demands

disclosure.” Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d

1224, 1229 (D.C. Cir. 2008) (citation and internal quotation

marks omitted). If the agency demonstrates that “a substantial

privacy interest is at stake, then [the Court] must balance the

privacy interest in non-disclosure against the public interest.”

Consumers’ Checkbook Ctr. for the Study of Servs. v. U.S. Dep’t

of Health & Human Servs., 554 F.3d 1046, 1050 (D.C. Cir. 2009).

“Substantial, in this context, means less than it might seem. A

substantial privacy interest is anything greater than a de

minimis privacy interest.” Humane Soc’y of United States v.

Animal & Plant Health Inspection Serv., 386 F. Supp. 3d 34, 43

(D.D.C. 2019) (citation and internal quotation marks omitted).

Here, DOJ has demonstrated that the individuals’ privacy

interests are substantial. OIP withheld the names and contact

information of certain SCO and law enforcement personnel after

“[c]onsidering the sensitive and often contentious nature of the

work of the SCO, as well as the work law enforcement personnel

conduct.” Brinkmann Decl., ECF No. 36-3 at 24 ¶ 53. OIP and the

32
FBI withheld the personal e-mail addresses and telephone numbers

of reporters on the basis that “the release of such information

could subject those individuals to unwarranted harassment in

their personal time and personal lives.” Id. at 24 ¶ 54; see

also Hardy Decl., ECF No. 36-4 at 12 ¶ 27 (“[T]he public could

draw negative conclusions based on their inquiries to OPA or

devote unwanted attention and/or harassment toward the

individuals based on their communications with OPA if their

identities were publicly disclosed.”). In addition, OIP and the

FBI withheld the names and personal identifying information of

third parties referenced in the records at issue to prevent

unwarranted harassment. Defs.’ Mem., ECF No. 36-1 at 27-29.

Finally, OIP redacted purely personal information of reporters,

third parties, and DOJ employees, such as “vacation details,

holiday plans, religious observances, and other similar

information unrelated to any government function or activity.”

Id. at 29.

Freedom Watch argues that DOJ’s “examples” of the privacy

interests of the government personnel, reporters, and third

parties constitute a “speculative secondary effect condemned in

Arieff.” Pl.’s Opp’n, ECF No. 37 at 9. In dicta, the D.C.

Circuit in Arieff stated that Exemption 6 “does not apply to an

invasion of privacy produced as a secondary effect of the

release . . . . [I]t is the very ‘production’ of the documents

33
which must ‘constitute a clearly unwarranted invasion of

personal privacy.’” 712 F.2d at 1468 (citation omitted); see

also Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873,

877 (D.C. Cir. 1989). In Arieff, the government invoked

Exemption 6 to withhold information that contained the names and

amounts of prescription drugs supplied to the Office of

Attending Physician to the United States Congress (“OAP”), but

the information sought there did not identify a particular

member of Congress. 712 F.2d at 1466-68. The D.C. Circuit held

that Exemption 6 did not cover the information about the

prescription drugs because the records contained no information

directly attributable to an individual. Id. at 1467 (concluding

that the FOIA requester “established no more than a ‘mere

possibility’ that the medical condition of a particular

individual might be disclosed”). The opposite is true here. The

disclosure of the redacted information in this case would work a

clearly unwarranted invasion of personal privacy because such

information is attributable to individuals. See Arieff, 712 F.2d

at 1467-68. As stated by DOJ, “the release of the requested

information would not result in a mere theoretical possibility

of an invasion of privacy, or mere speculation regarding the

names contained in the withheld material.” Defs.’ Reply, ECF No.

38 at 14.

DOJ points out—and the Court agrees—that the release of

34
information connecting any individual to “the politically

charged environment surrounding the SCO’s work” would subject

him or her to unwarranted harassment. Defs.’ Mem., ECF No. 36-1

at 27-28. The historical significance and high-profile nature of

the SCO’s investigation into the Russian government’s efforts to

interfere in the 2016 presidential election have generated

widespread debate and speculation. It is beyond dispute that the

government employees in the SCO and the FBI were working in

“sensitive agencies” and “sensitive occupations.” Long v. Office

of Pers. Mgmt., 692 F.3d 185, 192 (2d Cir. 2012); see also

Walston v. U.S. Dep’t of Def., 238 F. Supp. 3d 57, 67 (D.D.C.

2017) (Sullivan, J.).

In Walston, this Court found that the agency properly

withheld the names and other personal identifying information of

low-level government employees who conducted an investigation

into the plaintiff’s allegations of hacking activity by a

government employee because the investigators had a “cognizable

privacy interest in keeping their names from being disclosed”

because they were “employed in a ‘sensitive agenc[y]’ and [had]

‘sensitive occupations.’” 238 F. Supp. 3d at 67 (citation

omitted); cf. Judicial Watch, Inc., 736 F. Supp. 2d at 211 (“It

is well-established that information identifying law enforcement

and support personnel can be withheld pursuant to Exemption

7(C).”). For the same reasons, the Court therefore finds that

35
DOJ properly withheld the names and other personal identifying

information of the government employees, reporters, and third

parties in the responsive materials based on their substantial

privacy interests.

3. The Privacy Interests Outweigh the Public
Interest

The Court turns to the balancing of the privacy interests

against the public interest. The privacy interests at stake here

outweigh the public interest in the release of the redacted

information. Freedom Watch contends that the disclosure of the

redacted information “is necessary to disseminate to the public

any information concerning grand jury leaks and other

confidential information made by the media and leaked by the

spokesperson.” Pl.’s Opp’n, ECF No. 37 at 10. In response, DOJ

argues that Freedom Watch’s assertion is nothing more than a

“wholly unsubstantiated claim,” and that Freedom Watch “offers

nothing to show why the public interest in the withheld material

outweighs the substantial privacy interests involved.” Defs.’

Reply, ECF No. 38 at 14. DOJ contends that Freedom Watch’s

“suggestion of wrongdoing is pure speculation that is, of

course, inaccurate and unsupported by any evidence.” Id. (citing

Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 173

(2003)).

“In this balancing analysis, [Freedom Watch] bears the

36
burden of establishing a legitimate public interest supporting

disclosure which is in line with the core purpose of FOIA, to

contribute to greater general understanding of agency practice

and procedure.” Walston, 238 F. Supp. 3d at 67 (citation

omitted). Freedom Watch has failed to do so. Freedom Watch has

not demonstrated how the personal information of the government

employees, reporters, and third parties will “help the public

stay informed about ‘what their government is up to.’” Am.

Immigration Lawyers Ass’n v. Exec. Office for Immigration

Review, 830 F.3d 667, 674 (D.C. Cir. 2016) (quoting DOJ v.

Reporters Comm. For Freedom of Press, 489 U.S. 749, 773 (1989)).

The Court therefore finds that DOJ properly withheld the

redacted information under Exemptions 6 and 7(C). Accordingly,

the Court GRANTS DOJ’s motion for summary judgment as to

Exemptions 6 and 7(C). 7

D. The Disclosure of Reasonably Segregable, Non-
Privileged Material

Finally, DOJ argues that it is entitled to summary judgment

7 Having found that Freedom Watch failed to carry its burden of
demonstrating that the disclosure of the redacted information
would advance the public interest under Exemption 6, the Court
need not decide whether Freedom Watch met its evidentiary burden
under Favish. See Favish, 541 U.S. at 174 (When “the public
interest being asserted is to show that responsible officials
acted negligently or otherwise improperly in the performance of
their duties,” the FOIA requester has the burden under Exemption
7(C) to “establish more than a bare suspicion in order to obtain
disclosure” and “produce evidence that would warrant a belief”
of “the alleged Government impropriety[.]”).
37
on its segregability determinations. Defs.’ Mem., ECF No. 36-1

at 31. Freedom Watch does not advance any legal arguments in

opposition to DOJ’s segregability determinations. See Pl.’s

Opp’n, ECF No. 37 at 12. Rather, Freedom Watch argues that

“without the Court’s in camera review, [DOJ has] not clearly

demonstrated that the documents [Freedom Watch] seeks contain no

reasonably segregable factual information.” Id. DOJ disagrees,

arguing that “[t]he Brinkmann and Hardy declarations confirm

that OIP and [the] FBI, respectively, conducted a line-by-line

review to carefully determine in good faith what portions of

responsive materials could be released and what portions must be

withheld.” Defs.’ Reply, ECF No. 38 at 16.

The Court has an “affirmative duty” to consider whether DOJ

has satisfied its segregability obligations. Trans–Pac. Policing

Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir.

1999). “Agencies are entitled to a presumption that they

complied with the obligation to disclose reasonably segregable

material,” which must be overcome by some “quantum of evidence”

from the FOIA requester. Sussman v. U.S. Marshals Serv., 494 F.

3d 1106, 1117 (D.C. Cir. 2007). Such a presumption is warranted

in this case.

Here, the Brinkmann and Hardy declarations aver that all

reasonably segregable, non-exempt information has been released

to Freedom Watch. E.g., Brinkmann Decl., ECF No. 36-3 at 25 ¶ 55

38
(“There is no additional, non-exempt information that can be

segregated for release to Plaintiff.”); Hardy Decl., ECF No. 36-

4 at 15 ¶ 32 (“The FBI provided Plaintiff all non-exempt records

or portions of records responsive to its FOIA request.”); id. at

16 ¶ 36 (“The FBI . . . released all reasonably segregable, non-

exempt information[.]”). The first declarant confirms that “OIP

conducted a line-by-line review of the responsive documents to

determine in good faith what material should be released

consistent with FOIA’s requirements.” Brinkmann Decl., ECF No.

36-3 at 25 ¶ 55. The second declarant confirms the same. Hardy

Decl., ECF No. 36-4 at 15 ¶ 32 (“During the processing of

[Freedom Watch’s] request, a line by line review of each

responsive page was conducted to identify non-exempt information

that could be reasonably segregated and released.”).

Freedom Watch fails to present a “quantum of evidence” that

overrides the presumption in favor of DOJ’s segregability

determinations. Sussman, 494 F. 3d at 1117. DOJ did not withhold

in full any responsive materials. See, e.g., Defs.’ Reply, ECF

No. 38 at 16; Defs.’ Ex. 1, ECF No. 36-3 at 57-80; Defs.’ Ex. 2,

ECF No. 36-4 at 37-42. And Freedom Watch does not identify one

document or piece of information to show that DOJ failed to

satisfy its obligations to segregate exempt information from

non-exempt information. See Pl.’s Opp’n, ECF No. 37 at 12. The

Court therefore finds that DOJ’s Vaughn indices and declarations

39
demonstrate that all reasonably segregable, non-exempt

information has been released to Freedom Watch. The Court need

not conduct an in camera review because DOJ adequately describes

its segregability analysis and justifies its withholdings under

Exemptions 5, 6, and 7(C). See Mead Data Cent. v. U.S. Dep’t of

Air Force, 566 F.2d 242, 262 (D.C. Cir. 1977) (“[A] district

court need not conduct its own in camera search for segregable

non-exempt information unless the agency response is vague, its

claims too sweeping, or there is a reason to suspect bad

faith.”). 8

IV. Conclusion

For the reasons set forth above, the Court GRANTS DOJ’s

Motion for Summary Judgment. A separate Order accompanies this

Memorandum Opinion.

SO ORDERED

Signed: Emmet G. Sullivan
United States District Judge
March 23, 2020

8 Freedom Watch requests an in camera review of the redacted
information in the responsive materials. Pl.’s Opp’n, ECF No. 37
at 12. DOJ argues that “in camera review is particularly
unwarranted because the agencies have demonstrated that the
redacted material falls within Exemptions 5, 6, and 7(C).”
Defs.’ Reply, ECF No. 38 at 17. The Court agrees. The Court will
not exercise its discretion to conduct an in camera review. See
5 U.S.C. § 552(a)(4)(B); see also Canning v. U.S. Dep’t of
State, 134 F. Supp. 3d 490, 502 (D.D.C. 2015) (“In camera review
is a last resort.” (citation and internal quotation marks
omitted)). Having found that DOJ is entitled to summary
judgment, the Court DENIES Freedom Watch’s request for an in
camera review.
40