Biear v. DOJ, No. 14-1488, 2023 WL 4867431 (M.D. Pa. July 31, 2023) (Mariani, J.)

Biear v. DOJ, No. 14-1488, 2023 WL 4867431 (M.D. Pa. July 31, 2023) (Mariani, J.)

Re:  Requests for all records concerning plaintiff

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that “[defendant’s] account of his team’s efforts to locate responsive documents was ‘reasonably detailed’ and suffices to establish that the search was adequate.”  The court relates that defendant searched certain “databases and located no responsive records.”  The court relates that defendant also searched its “email system,” “identified responsive records” belonging to “seven record custodians who had worked on matters involving [plaintiff],” and “[t]hrough [the office which possessed the records] and the seven custodians, using search terms including [plaintiff’s] name, aliases, social security number, and date of birth, within the date range [pertinent to the request], the Criminal Division located 2,116 pages of potentially responsive documents.”  “After processing the documents, the Criminal Division determined that 1,645 of those pages were either duplicative or non-responsive.”  “[Plaintiff] has not alleged any shortcomings or deficiencies with respect to the search, nor has the Court identified any.”

• Exemption 3:  “[T]he Court finds Exemption 3 was properly applied only to documents concerning the [Mutual Legal Assistance Treaty (“MLAT”)] request to Denmark.”  The court relates that “[t]he Criminal Division contends that the two MLATs at issue, between the United States and Denmark (‘US-Den. MLAT’) and the United States and Australia (‘US-Austl. MLAT’), respectively, are qualifying non-disclosure statutes under Exemption 3, and that the records withheld are covered by the treaties' confidentiality provisions.”  “Before addressing whether the treaties are qualifying non-disclosure statutes under (b)(3)(A)(i) or (b)(3)(A)(ii), the Court must first resolve a threshold question:  whether the treaties are properly construed as statutes.”  The court finds that “[o]n its face, Exemption 3 concerns statutes, which technically, the MLATs are not.”  “Whether statutes include treaties for purposes of Exemption 3 is a question not yet answered by the Third Circuit.”  “But at least two other courts have faced the question and determined that treaties, specifically MLATs such as these, are properly construed as statutes.”  “Those courts held further that the MLATs were qualifying non-disclosure statutes.”  “This Court reaches the same conclusion.”  The court explains that one other court found that one MLAT was “‘equivalent to an act of the legislature’ because it was a bilateral treaty ratified by the Senate.”  That court “distinguished between a self-executing and non-self-executing treaty and noted that the former ‘operates of itself without the aid of any legislative provision’ and therefore has ‘automatic domestic effect as federal law upon ratification.’”  The court finds that “[b]oth the US-Den. and US-Austl. MLATs are Senate-ratified, self-executing treaties . . . .” 
  
  “The next question is whether the MLATs are qualifying non-disclosure statutes under Exemption 3.”  “To qualify, they must either require that qualifying matters be ‘withheld from the public in such a manner as to leave no discretion on the issue,’ . . . or ‘establish[ ] particular criteria for withholding or refer[ ] to particular types of matters to be withheld.’”  “The Criminal Division contends that both MLATs qualify, because each requires ‘the Requested State to treat a request and its contents as confidential when so specified by the Requesting State.’”  “The Court is persuaded that both MLATs qualify as non-disclosure statutes under (b)(3)(A)(ii).”  “Indeed, Article 7 of the US-Den. MLAT states, in relevant part, ‘The requested State shall use its best efforts to keep confidential a request and its contents if such confidentiality is requested by the requesting State.’”  “Such language suffices to establish ‘particular criteria for withholding’ – namely, whether the requesting State has requested confidentiality.”  “Article 5 of the US-Austl. MLAT states, in relevant part, ‘The Requested State shall use its best efforts to keep confidential a request, its contents, and any action taken on the request if such confidentiality is requested by the Central Authority of the Requesting State.’”  “Furthermore, Article 7 provides that ‘(1) If the Central Authority of the Requested State so requests, the Requesting State shall not use any information or evidence obtained under this Treaty in any investigation, prosecution, or proceeding other than that described in the request without the prior consent of the Requested State’ and ‘(2) The Central Authority of the Requested State may request that information or evidence furnished under this Treaty be kept confidential or be used only subject to terms and conditions it may specify.’”  “In the case of the US-Austl. MLAT, then, either the requesting or requested state may require confidentiality.”  “Such language is sufficient to qualify under (b)(3)(A)(ii).” 
  
  “The only remaining question is whether the confidentiality provisions in the two MLATs cover the information actually withheld.”  “The Criminal Division indicates that Document Nine in its Vaughn Index is a ‘cover letter between OIA and the Ministry of Justice, Denmark’ that ‘seeks the confidential treatment of the [Denmark] request.’”  “Such request is of the type contemplated by Article 7 of the US-Den. MLAT, thereby invoking the confidentiality provision.”  “Any matter relating to the US-Den. MLAT request or its contents is therefore properly withheld, and the Vaughn Index is sufficiently specific to demonstrate that application was proper with respect to each document concerning the US-Den. MLAT request.”  “The US-Austl. MLAT-related documents are more complicated.”  “The Criminal Division acknowledges that ‘confidentiality was not expressly requested or invoked by the United States with regard to the US-Austl. MLAT request,’ but argues ‘it can be reasonably inferred that confidentiality was impliedly requested.’”  “Without [an] additional – and more compelling – indicator that confidentiality was intended, the Court is not persuaded that Exemption 3 applies.”  “As necessary under Exemption 3, the US-Austl. MLAT ‘establishes particular criteria for withholding’:  whether either party to the treaty requested confidentiality.”  “If those criteria are not met, the exemption cannot apply.”  “Because the Criminal Division has failed to demonstrate that the necessary criteria were met, Exemption 3 is not properly applied with respect to documents regarding the US-Austl. MLAT request.”
   
• Exemption 7(D):  The court finds that “the confidentiality implied by the US-Austl. MLAT, although insufficient to meet the MLAT’s ‘particular criteria for withholding’ under Exemption 3, suffices to satisfy Exemption 7(D), because 7(D) is widely held to cover implied assurances of confidentiality.”  “Specifically, the Criminal Division contends that ‘it was impliedly understood that all of the articles contained in the U.S.-Austl., MLAT, including the confidentiality provisions, even if not specifically invoked, applied to all evidence and information provided by either country.’”  “The Government’s position is accorded a presumption of good faith, and [plaintiff] offers no evidence to the contrary.”
   
• Litigation Considerations, Vaughn Index/Declaration:  The court finds that “[a] small group of documents are ambiguous as to which MLAT request is at issue.”  “Some of the entries in the Vaughn Index, however, assert that a document is withheld because it references an MLAT without specifying which MLAT.”  “In the instances where both Exemption 3 and Exemption 7(D) are asserted to justify the withholding of those documents, the lack of specification is inconsequential.”  “But where only Exemption 3 is asserted – not Exemption 7(D) – the document would not be properly withheld if the MLAT it refers to is that with Australia, and therefore the Vaughn Index is not sufficiently specific to justify those particular exemptions.”  “[T]he Criminal Division’s Motion will be denied with respect to [these documents].”

• Exemption 5, Deliberative Process Privilege:  The court holds that “[t]he Criminal Division has therefore met its burden with respect to the application of Exemption 5 to the foregoing documents.”  The court relates that “[m]ost of the 46 documents to which Exemption 5 was applied are already properly withheld on the basis of Exemptions 3 or 7(D), but [one] group of documents are not.”  “While [defendant’s] descriptions are sparse, the Court finds that . . . the Criminal Division has shown that these documents are both predecisional and deliberative.”  “[T]he documents listed above are internal communications between DOJ attorneys that clearly concern the investigation and prosecution of [plaintiff], and were ‘generated before the agency’s final decision on the matter.’”  “They are deliberative in that their disclosure ‘would inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is as yet only a personal position.’”

• Exemption 6; Exemption 7(C); Litigation Considerations, “Reasonably Segregable” Requirements:  The court relates that “the Criminal Division jointly asserted Exemptions 6 and 7(C) to each of the 110 documents, to protect against invasions of personal privacy.”  “Specifically, the exemptions are asserted to protect ‘federal law enforcement and support personnel that participated in investigations related to [plaintiff]; foreign law enforcement officials and investigators; foreign business employees; and third party target/subjects of the criminal investigation related to [plaintiff].’”  “Most of the documents withheld on the basis of Exemptions 6 and 7(C) are properly withheld under Exemptions 3, 5, or 7(D) . . . .”  As to the remainder, the court first finds that “[t]he two exemptions are frequently asserted together and require a similar analysis, though 7(C) applies more broadly.”  “Accordingly, the Court starts its analysis with 7(C).”  “The records at issue were compiled for law enforcement purposes, specifically to facilitate the investigation and prosecution of [plaintiff], thereby satisfying the first requirement of 7(C).”  “Review of the Vaughn Index entries for [certain documents] demonstrates that the Criminal Division properly applied 7(C), because the matter withheld – including names, addresses, and financial information – ‘could reasonably be expected to constitute an unwarranted invasion of personal privacy’ if released.”  “When balanced against the only relevant public interest, the privacy interests prevail.”  “The records at issue shed little light on the Criminal Division’s ‘performance of its statutory duties.’”  “The application of Exemption 7(C) was therefore proper, with two exceptions.”  “The Criminal Division has failed to demonstrate that Exemption 7(C) justifies the withholding in full of Documents 1 and 43.”  “The respective document descriptions do not assert that they contain sensitive third party information.”  “But even assuming the documents do contain third party information, the nature of the documents, a ‘notice of closed files form’ and an ‘[a]utomatic email notification’ regarding tasks relating to the ‘[plaintiff] MLAT,’ suggests they may contain reasonably segregable, responsive information.”  “Documents 1 and 43 must therefore be disclosed, subject to the redaction of third party information as necessary under 7(C).”