Citizens for Resp. & Ethics in Wash. v. DOJ, No. 20-0212, 2022 WL 4598537 (D.D.C. Sept. 30, 2022) (Sullivan, J.)

Citizens for Resp. & Ethics in Wash. v. DOJ, No. 20-0212, 2022 WL 4598537 (D.D.C. Sept. 30, 2022) (Sullivan, J.)

Re:  Request for records concerning resources expended on examination of certain activities involving campaigns in 2016 U.S. presidential election

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiff’s motion for partial summary judgment

• Litigation Considerations, Adequacy of Search:  “The Court finds that the affidavit submitted by [defendant] ‘specif[ies] “what records were searched, by whom, and through what process.”’”  “Further, the affidavit sufficiently ‘set[s] forth the search terms and the type of search performed, and aver[s] that all files likely to contain responsive materials (if such records exist) were searched.’”  “This information is sufficient to satisfy the Court’s inquiry.”
   
• Exemption 7, Threshold:  “[T]he Court concludes that DOJ has met the threshold for invoking Exemption 7.”  The court relates that “[t]he records at issue are three spreadsheets.”  “Two contain the following information:  (1) the names and salaries of the members of the Review and their home office . . . .”  “The third spreadsheet contains the identities and salaries of investigators from the U.S. Attorney’s Office for the District of Connecticut, travel and travel cost information, and witness identifying information.”  The court finds that, “[f]irst, there is a rational ‘nexus’ between the records and the agency’s law enforcement duties.”  “The records contain information about the salaries, travel and other expenditures, and staffing details of the members of the Review.”  “The Review needs to track the identities of its members as well as its travel and other expenses to maintain an organized investigation.”  “Second, there is a connection between the records and a possible violation of federal law because the members of the Review – a law enforcement investigation being conducted by DOJ – are investigating possible violations of federal law.”  “With regard to [plaintiff’s] argument that the records were compiled for FOIA processing purposes, it is not fatal that DOJ has compiled information it stores elsewhere into spreadsheets to fulfill this FOIA request.”  “The Supreme Court has instructed that ‘information initially contained in a record made for law enforcement purposes continues to meet the threshold requirements of Exemption 7 where that recorded information is reproduced or summarized in a new document prepared for a no[n]-law-enforcement purpose.’”
   
• Exemption 7(A):  The court holds that “[t]here is no dispute that the Review constitutes a pending or reasonably anticipated law enforcement proceeding within the meaning of FOIA Exemption 7(A).”  “An ongoing investigation that is likely to lead to future enforcement proceedings is enough to invoke the exemption.”  The court relates that “[plaintiff] has clarified that it only seeks segregable salary and cost information and thus continues to seek: (1) travel destinations, (2) dollar amounts of investigation expenses; and (3) personnel salaries.”  “With regard to the ‘dollar amount of investigation expenses,’ the responses to the FOIA request indicate that this information consists of the salary information and travel information.”  “Accordingly, the Court does not consider this a separate category of information.”  The court finds that, “[h]ere, it appears logical that disclosure of the travel information described . . . ‘could reasonably be expected to interfere with enforcement proceedings.’”  “[Plaintiff] specifically seeks travel destinations.”  “However, disclosure of travel destinations logically could reveal ‘the nature, scope, direction, and focus of [the] investigation[ ] . . . .’”  “Accordingly, the travel information described supra is protected by Exemption 7(A).”  “It also appears logical that disclosure of the salaries of the members of the Review ‘could reasonably be expected to interfere with enforcement proceedings.’”  “[D]isclosure of individual salaries would disclose information about the scope and breadth of the Review.”  “And because the members of the Review are compensated on a highly structured pay scale, disclosure of this information would provide the number of members of the Review, and from that information could likely be extrapolated the general professional credential of each member, such as attorney, investigator, paralegal, etc.”  “Disclosure of this information logically could reveal at least the scope of the investigation.”  “Accordingly, the specific salaries of each member of the Review are protected by Exemption 7(A).”  The court relates that “[plaintiff] points to [the] fact that the Office of Special Counsel releases expenditure information without interfering with or signaling the course of its investigation.”  The court finds that “DOJ responds – and the Court agrees – that the release of the Special Counsel information pursuant to DOJ regulations does not mean that DOJ cannot protect similar information in response to a FOIA request in an unrelated matter and where DOJ demonstrates the harm that would result.”
   
• Exemption 6 & Exemption 7(C):  “The Court concludes that DOJ has met its burden to withhold names and other identifying information [of members of the review] pursuant to FOIA Exemptions 6 and 7(C).”  “The Court accepts DOJ’s claim that ‘disclosure . . . could subject these individuals to harassment and to questioning as to the scope of their involvement in the ongoing investigations of the Review.’”  “Because disclosure of the identities of these law enforcement officials would not add greatly to the public's interest in scrutinizing agency action, the balance of the interests weighs in favor of non-disclosure for both exemptions.”
   
• Exemption 7(F):  The court relates that “DOJ invoked Exemption 7(F) to protect the identities of witnesses called by the Review whose safety could potentially be at risk if their names were released.”  “These witnesses fall squarely within the category of individuals who warrant protection pursuant to this exemption.”  “As EOUSA attests in its affidavit, ‘there was a reasonable likelihood that a threat of harm could be posed to the individuals who assisted in the course of the investigation, should the withheld material be released.’”  “Because Exemption 7(F) does not require a balancing test, . . . the Court’s inquiry is satisfied with DOJ’s credible statement of possible harm.”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  “[T]he Court has concluded that the information in the spreadsheets is exempt under FOIA Exemption 7(A).”  “Accordingly, there is no non-exempt portion to segregate.”