Brennan Ctr. for Justice at N.Y. Univ. School of Law v. DOJ, No. 18-1860, 2021 WL 2711765 (D.D.C. July 1, 2021) (Moss, J.)

Brennan Ctr. for Justice at N.Y. Univ. School of Law v. DOJ, No. 18-1860, 2021 WL 2711765 (D.D.C. July 1, 2021) (Moss, J.)

Re:  Request for all records in Legal Information Office Network System ("LIONS") database relating to terrorism cases, including docket numbers associated with court proceedings in each case

Disposition:  Granting in part and denying in part defendant's partial motion for reconsideration

• Litigation Considerations, Waiver of Exemptions in Litigation:  The court relates that "the Department seeks reconsideration on the ground that its withholding of docket numbers is justified under Exemption 7(C) 'in order to protect the privacy of individuals who have" been convicted of a crime but have "not been linked publicly to terrorism.'"  "Nothing prevented the Department from raising this argument in its motion for summary judgment; the Department simply failed to do so."  "The Department does not argue – nor could it – that Rule 59(e) provides an open door for litigants to raise new arguments that were previously available but not previously made."  "Principles of finality, efficiency, and fairness, as well as the need to promote confidence in the courts' judgments, all preclude relitigating fully briefed and adjudicated motions based on nothing more than disagreement with the Court's ruling or the hope that an alternative argument might fare better than the arguments the litigant previously raised."  The court finds that "[i]f the pending motion implicated only the interests of the parties, the Court's analysis might end here."  "But the motion also implicates (and, in fact, most directly implicates) the interests of third parties, “whose identity and information are [arguably] protected by FOIA' . . . ."  "In these circumstances, the Court must assess whether reconsideration is necessary to 'prevent [a] manifest injustice to the[se] innocent third parties.'"  "The Court will consider the motion under the only available prong of the governing standard, which asks whether relief is necessary 'to correct a clear error or [to] prevent manifest injustice.'"  "Putting the Rule 59(e) standard together with the Exemption 7(C) standard, the Court may grant the motion for reconsideration only if it concludes that its prior balancing of the public interest in disclosure against the privacy interests protected by Exemption 7(C) constituted a 'clear error' or, if allowed to stand, would result in a 'manifest injustice.'"
   
• Exemption 7(C) & Procedural Requirements, "Reasonably Segregable" Obligation:  "Upon consideration of the Department's motion for reconsideration and its supplemental declaration and Vaughn index, as well as Plaintiffs' responses, the Court concludes that release of at least some of the docket numbers at issue would constitute a manifest injustice."  "The Court will, accordingly, grant the motion for reconsideration in part."  "The Court cannot, however, accept the most sweeping version of the Department's motion, which would relieve the Department of the obligation to segregate and to disclose even those docket numbers associated with cases that the Department has publicly associated with terrorism."  Regarding the public interest, the court finds that "[the public] interest [is] substantial."  The court focuses on the issue of "how the Department characterizes terrorism-related cases, but also about whether the Department has long overstated the number of terrorism-related cases that it prosecutes." 
   
  Regarding the privacy interest, first "the Court concludes that the Department has properly invoked Exemption 7(C) to protect the identities of those individuals who were subject to terrorism-related investigations but were never charged with or convicted of a terrorism-related charge."  The court explains that "[t]he asserted third-party privacy interest is compelling in those cases where the initial investigation suggested some possible connection to terrorism – and the case was categorized as terrorism-related on that basis – but the ultimate charges in the case were unrelated to terrorism."  "Disclosure of LIONS terrorism-related cases, moreover, would not serve the public interest in understanding which prosecutions the Department of Justice classifies as terrorism-related and how the Department prosecutes those cases."  "To be sure, the public might be interested in how the Department handles terrorism-related investigations."  "But specific criminal investigations, as opposed to prosecutions, are not generally subject to public disclosure – and for good reason."  The court explains that "'[t]he presumption of innocence stands as one of the most fundamental principles of our system of criminal justice: defendants are considered innocent unless and until the prosecution proves their guild beyond a reasonable doubt.'"  "But, as the court further explained, '[u]nfortunately, public perceptions can be quite different,' . . . and many may unjustifiably assume that the subjects of terrorism-related investigations are, in fact, terrorists."  Second, the court finds that "[t]he docket numbers for cases that are categorized as terrorism-related for 'unknown' reasons present a more difficult question."  "As to those cases, the Court concludes that the Department needs to work harder to reach the best conclusion it can."  "If, after careful review, the Department cannot find any reason to conclude that the matter was, in fact, related to terrorism, it may make that representation in its final Vaughn index and may treat the designation as erroneous."  "But if it cannot reach that conclusion, the Department will need to decide whether the case should be included in one of the other buckets discussed in this opinion."  Third, the court relates that "[t]he next category is the easiest to address: those cases that resulted in convictions and where the Department has already characterized the case as terrorism-related, in a press release, charging document, or sentencing memorandum."  "As to those cases, the Court's prior reasoning in [this case] continues to apply, and there is no reason to revisit the Court's conclusion requiring disclosure."  "The Department does not disagree with any of that, but it nonetheless argues that the Court should relieve it of the duty to release this information because the process of sorting through 3,416 cases to identify those cases publicly linked to terrorism would be unduly burdensome."  "Specifically, [defendant] explains that 'LIONS does not provide . . . the functional capability to separate cases where the defendants were publicly connected to terrorism from those where there was no such public connection.'"  "Instead, prosecutors must conduct a 'manual review of thousands of pages of records for a single case to determine whether there was any public reference to terrorism.'"  "But this issue is before the Court on the Department's post-judgment motion for reconsideration, and [defendant] suggests only that segregating the docket numbers would be 'burdensome,' . . . not impossible."  "In these circumstances, the Court is unpersuaded that requiring the Department to do the work required to identify the docket numbers that it can lawfully withhold would itself constitute a 'manifest injustice.'"  Finally, the court relates that "[it] suspects, however, that some cases labeled as either 'unknown' or 'investigation suggested possible terrorism connection' actually fall into an additional category – those prosecutions that the Department believes were terrorism-related but that it has never previously identified as such in any public filing, statement, or press release."  "As an initial matter, the Court concludes that, within this category, the Department may only seek to protect docket numbers associated with charges (and resulting convictions) that are not, on their face, terrorism-related."  "The Court recognizes, however, that the LIONS database also includes convictions categorized as terrorism-related for offenses that may or may not bear a connection to terrorism, such as making a false statement, . . . or unlawful possession or sale of a firearm by a person convicted of a crime or unlawfully present in the United States . . . ."  "As noted above, public disclosure of docket numbers in cases that fall in this category – that is, cases that the Department believes are, in fact, terrorism-related and has included in its various reports relating to terrorism prosecutions, but that the Department has never publicly identified as terrorism-related prosecutions, would serve the public interest by shedding light on how the Department defines 'terrorism-related' crimes and how it prosecutes those cases."  "Those are topics or immense public importance, but, to the extent the Department draws these lines internally without ever disclosing publicly even what types of cases it has in mind when it reports to Congress and the public about its terrorism-related prosecutions, public debate and scrutiny are both distorted and limited."  "The Court, accordingly, concludes that the public interest in disclosure is substantial – and far more substantial than the Court previously recognized."  "But, at the same time, the corresponding privacy interests are also substantial – and, again, far more substantial than the Court previously recognized."  "It is one thing for the public to know that you have made a false statement in violation of federal law or have unlawfully possessed a firearm."  "It is another thing entirely for the public to know that, in the Department's view, your unlawful conduct bore a relationship to 'terrorism,' particularly when the Department never conveyed that belief to the Court or to the public while the relevant proceedings were pending, at a time when you could have challenged that characterization."  "Although this issue presents a close question, the Court is persuaded that the public disclosure of docket numbers corresponding to cases that the Department has only internally characterized as 'terrorism-related' would 'constitute an unwarranted invasion of personal privacy,' . . . and that sustaining the Court's prior judgment would constitute 'a manifest injustice' . . . ."