Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 16-5138, 2017 WL 1422487 (D.C. Cir. Apr. 21, 2017) (Wilkins, J.)

Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 16-5138, 2017 WL 1422487 (D.C. Cir. Apr. 21, 2017) (Wilkins, J.)

Re: Request for records concerning investigation of former congressman

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

• Litigation Considerations, Waiver of Exemptions in Litigation: The Court of Appeals for the District of Columbia Circuit holds that "[a]s the Government's invocation of Exemption 5 was untimely and the Government has not provided a sufficient basis for declining to apply the . . . timeliness rule, Exemption 5 cannot shield any of the information sought by [the requester] in this appeal." The court relates that "the District Court noted that the Government's 'briefing contains no claim of changed factual or legal circumstances, no mea culpa or acknowledgment [of] 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.'" The court finds that "[i]f Exemption 5 had been invoked at the outset, [the court] could have resolved the merits of its application in the prior appeal." "A robust timeliness rule encourages the Government to present all its arguments the first time around." "Weakening that rule lessens the incentive." "In addition, requiring a FOIA requester to brief and argue the merits of newly asserted defenses – rather than simply adverting to the timeliness rule – imposes additional costs on that party." "These considerations suggest that a robust timeliness rule well serves FOIA's goal of a prompt and efficient process." "Of course, there will be 'unusual situations, largely beyond the government’s control,'. . . in which other considerations override those motivating the timeliness rule . . . but the Government has not made any claim that this is such a case."
  
  The court additionally relates that "[t]he Government continues to argue . . . that the fact that the Criminal Division cited Exemption 5 in the original proceedings precludes any inference of gamesmanship or sandbagging with respect to the FBI's initial failure to make a similar assertion." The court finds that "[t]hat contention is belied by the fact that DOJ utilized a decentralized process, in which the Criminal Division and the FBI independently decided whether or not to release responsive records that originated in their respective components." "The decision of the Criminal Division to invoke Exemption 5 therefore tells [the court] nothing about why the FBI chose not to cite it."
   

• Exemptions 6 & 7(C): "[The Court of Appeals for the District of Columbia Circuit] reverse[s] the grant of summary judgment and remand[s] to the District Court." The court relates that the district court allowed for a categorical withholding of the names of "individuals who have already been publicly identified – either through agency press releases or testimony in open court – as having been charged, convicted or otherwise implicated in connection with the public corruption investigation [at issue]." The court finds that "[t]he privacy interests of individuals who have not been convicted in connection with this investigation – and even more so those who have not been publicly linked with the investigation whatsoever – differ greatly from those of individuals who were convicted or pled guilty for their roles." "Connecting the names of individuals to information contained in the documents at issue could add much, or not at all, to the public's understanding of how the Government carried out its investigation and decision not to prosecute [the former congressman]." "There is little [the court] can conclude in the abstract." "This area is simply not well-suited to categorical determinations." The court directs that, "[w]ith respect to those individuals with diminished privacy interests, the withholding of information pursuant to Exemptions 6 and 7(C) must be subjected to a particularized weighing of the public and privacy interests that would be implicated by the disclosure sought by [plaintiff]."