Citizens for Responsibility and Ethics in Wash. v. DOJ, No. 11-592, 2016 WL 1276413 (D.D.C. Mar. 30, 2016) (Leon, J.)

Citizens for Responsibility and Ethics in Wash. v. DOJ, No. 11-592, 2016 WL 1276413 (D.D.C. Mar. 30, 2016) (Leon, J.)

Re: Request for records concerning investigation of former House Majority Leader Tom DeLay

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

• Litigation Considerations:  "[T]he Court is convinced precluding defendant from asserting Exemption 5 as to the material at issue would not advance the policy goals supporting the Maydak rule" and will "therefore allow it."  The court explains that "[p]laintiff does not respond to defendant's argument that the material falls within the ambit of Exemption 5, and the Court therefore treats that argument as conceded."  "Instead, plaintiff claims 'the agency is foreclosed from asserting Exemption 5 as a basis for withholding responsive information' because it evinced this argument 'for the first time' in its present Motion for Summary Judgment."  The court finds that "an agency may be permitted to assert FOIA exemptions it did not raise in the initial district court proceedings under certain circumstances, most notably where (1) it was 'forced to invoke an exemption for the first time on appeal because of a substantial change in the factual context of the case or because of an interim development in applicable legal doctrine,' . . . ; (2) 'where, through pure mistake, the Government attorneys had not invoked the correct exemption in the district court' as to high value material that very likely 'was intended to be protected by one of the nine enumerated exemptions,' . . . ; and (3) where strict enforcement of the waiver rule would not advance the policy interests underlying it."  The court finds that "[d]efendant's briefing contains no claim of changed factual or legal circumstances, no mea culpa or acknowledgement or mistake, and indeed no explanation at all as to its failure to assert Exemption 5 in regards to the FBI's records in the original proceedings, and, therefore, the first two exceptions are inapplicable here."  However, the court finds that "[p]laintiff does not dispute that Exemption 5 shields the material at issue from disclosure, and therefore there is no occasion for delaying the process with presentation and consideration of fresh arguments about the applicability of the exemption."  "[T]he Court agrees that defendant's behavior is not consistent with gamesmanship."  "Defendant never withheld its general argument that the DOJ attorneys' 'distillation of facts, legal analyses, opinions, and recommendations about whether to prosecute certain individuals' falls within Exemption 5." "That defendant now seeks to withhold similar material for the same reasons does not appear to be the intentional sandbagging warned against in Maydak but instead 'at most a lack of precision.'"  Therefore, the court "find[s], as defendant argues and plaintiff concedes, defendant properly withheld [the] pages [at issue] . . . pursuant to FOIA Exemption 5."
   
• Exemptions 6 and 7(C):  The court holds that "defendant was justified in withholding the names and identifying information of the relevant third parties."  "Because Exemption 7(C) 'establishes a lower bar [than Exemption 6] for withholding material,' . . . the Court focuses its analysis on whether the records were properly withheld under Exemption 7(C)."  First, the court finds that "[p]laintiff concedes that the 'disputed information was "compiled for law enforcement purposes" and thus satisfies the Exemption 7(C) threshold.'"  The court relates that "[p]laintiff does not challenge the withholding of information related to FBI Special Agents and support personnel or to non-FBI and federal government personnel, but maintains that defendant has failed to establish that all the withheld information related to third parties is exempted from disclosure."  The court finds that "[t]he various third parties all have substantial privacy interests at stake."  "'[I]ndividuals have a strong interest in not being associated unwarrantedly with alleged criminal activity.'"  The court then finds that "[w]hile releasing the withheld names would provide more information about Mr. DeLay's conduct and associations, it is unclear from plaintiff's argument how doing so would serve the public interest in shedding light on how the Department conducted the investigation."  The court holds that "[a]ssuming arguendo there is an 'incremental public interest' at stake, . . . it is weak and does not outweigh the third parties' substantial interest in nondisclosure."  Finally, the court finds that "[p]laintiff does not point to any information in the public domain confirming the individuals whose names are redacted have been publicly associated specifically with the investigation into Mr. DeLay or into the precise conduct or events discussed on the pages with redacted names and identifying information."