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CREW v. DOJ, No. 11-1021, 2013 WL 3835061 (D.D.C. July 25, 2013) (Boasberg, J.)

Re: Request for records related to investigation into "allegations of bribery and conflicts of interest" involving a former congressman Disposition: Denying defendant's motion for summary and granting plaintiff's motion for summary judgment in part
  • Vaughn: The court finds that EOUSA's categorical Vaughn index for 25,414 pages was insufficient.  "The Vaughn index and declaration submitted by EOUSA fall well short of [the required] standard, often simply because of the vast quantities of documents for which Defendant offers only one short paragraph of justification."  In addition, "DOJ provides no authority to show that submission of a 'categorical' Vaughn Index, even with a supporting affidavit, is either a customary or acceptable means of discharging its evidentiary burden."  The court notes that "the government has spent nearly 2,000 personnel hours" with more to be extended in response to this opinion and "is loath to pile additional responsibility on," "but finds its hands are tied."
  • Exemption 5: The court concludes that neither EOUSA nor the Criminal Division have provided enough information for the court to agree that Exemption 5 was properly invoked.  With respect to the deliberative process privilege, the Criminal Division "does not identify 'the role played by the documents in the course of [the deliberative] process' of deciding whether or not to indict" the congressman.  EOUSA's submissions only include one "paragraph explaining why nearly 4,000 documents are being withheld pursuant to the deliberative-process privilege" and only offer "circular justifications for withholdings that parrot back the relevant standards."  Likewise with respect to the attorney-work product privilege and the attorney-client privilege, the court again finds that it lacks sufficient information for analysis.  "EOUSA seeks to withhold nearly 4,000 documents under [the attorney work-product] privilege, but fails to provide any information regarding the dates of creation or the authors or recipients of any of the documents."  The Criminal Division's submissions are also "missing the kind of document-by-document information regarding the dates of creation, the authors and recipients, and some more detailed description of the documents' contents required by the work-product privilege."  With respect to the attorney-client privilege, the court finds that it cannot grant summary judgment because it still lacks critical details such as "whether 'the communication relates to a fact of which the attorney was informed by his client, outside the presence of strangers, for the purpose of securing legal advice.'"
  • Exemptions 6 and 7C:  The court notes that "documents and portions of documents withheld under Exemptions 6 and 7(C) may well be exempt from disclosure, but . . . the government has yet to provide Plaintiff and this Court with sufficient information to come to such a conclusion."
  • Exemption 3: The court also finds that defendants have not provided enough information for it to determine whether Exemption 3 was properly invoked.  The court remarks that "[w]hile it is entirely possible that all the documents at issue here can be withheld under Exemption 3, the Court is unable to make such a determination on the record currently before it."  "As Plaintiff correctly notes, 'Rule 6(e) does not cover all information developed during the course of a grand jury investigation, but only information that would reveal . . . [what] actually occurred before the grand jury.'"
Court Decision Topic(s)
District Court opinions
Exemption 3
Exemption 5
Exemption 6
Exemption 7(C)
Litigation Considerations, Vaughn Index/Declarations
Updated August 6, 2014