Citizens for Responsibility and Ethics in Washington v. DOJ, No. 12-5223, 2014 WL 1284811 (D.C. Cir. Apr. 1, 2014) (Henderson, C. J.)

Citizens for Responsibility and Ethics in Washington v. DOJ, No. 12-5223, 2014 WL 1284811 (D.C. Cir. Apr. 1, 2014) (Henderson, C. J.)

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

Disposition: Reversing and remanding district court's grant of defendant's motion for summary judgment

• Exemption 3:  The court holds that defendant's statement "that the requested documents contain information that 'could be used as evidence before a Federal Grand Jury' or 'may be subpoenaed by a Federal Grand Jury' and therefore that 'any such disclosure would clearly violate the secrecy of the Grand Jury proceedings . . . is insufficient" to support withholding information under exemption 3 and Federal Rule of Criminal Procedure 6(e).  The court finds that "[a]lthough we do not doubt that some of the requested records may fall under Exemption 3, the DOJ has not yet supplied sufficient information for a court to make that determination."
   
• Exemption 7(A):  The D.C. Circuit holds that "the DOJ has not met its burden to warrant categorical withholding [under Exemption 7(A)]."  The court finds that "[t]he first set of proceedings [cited by defendant] does not justify withholding because the sentencing hearings—and appeals—of [three individuals] are no longer 'pending or reasonably anticipated.'"  The court relates that "[t]he second type of proceeding [cited by defendant], ongoing at least in August 2011, consists of 'all related criminal investigations.'"  Regarding this second type of proceeding, the court finds that "it is not sufficient for the agency to simply assert that disclosure will interfere with enforcement proceedings; 'it must rather demonstrate how disclosure' will do so."  Despite its ruling, the court notes that "[o]nce again, we do not hold that the requested information is not exempt."  Instead, the court directs that "[o]n remand, the DOJ must clarify whether a related investigation is in fact ongoing and, if so, how the disclosure of documents relating to DeLay would interfere with it."
   
• Exemption 7(C):  The D.C. Circuit holds that "[a]lthough a substantial privacy interest is at stake here, in light of the similarly substantial countervailing public interest, the balance does not characteristically tip in favor of non-disclosure."  Concerning the privacy interest at stake, the court finds that "[b]ecause DeLay's public statements confirmed he had been under investigation, the FBI's acknowledgment that it had responsive records would not itself cause harm by confirming that fact, rendering a Glomar response inappropriate."  However, the court also finds that "[a]lthough DeLay's action lessened his interest in keeping secret the fact that he was under investigation, he retained a second, distinct privacy interest in the contents of the investigative files."  Concerning the public interest at issue, the court finds that "[o]n the other side of the scale sits a weighty public interest in shining a light on the FBI's investigation of major political corruption and the DOJ's ultimate decision not to prosecute a prominent member of the Congress for any involvement he may have had."  The court concludes that, while the "balance does not characteristically tip in favor of non-disclosure," "[w]e do not hold that the requested information is not exempt under Exemption 7(C)."  "We simply hold that a categorical rule is inappropriate here."
   
• Exemption 7(D):  The D.C. Circuit finds that defendant does not make the required "showing that the source is a confidential one."  The court holds that "[t]o invoke Exemption 7(D) on remand, the DOJ must either 'present probative evidence that the source did in fact receive an express grant of confidentiality,'" or "'point to more narrowly defined circumstances that . . . support the inference' of confidentiality."
   
• Exemption 7(E):  The D.C. Circuit holds that defendant's "near-verbatim recitation of the statutory standard is inadequate."  The court relates that "[w]e are not told what procedures are at stake."  The court directs that "the agency must at least provide some explanation of what procedures are involved and how they would be disclosed."