Elec. Priv. Info. Ctr. v. DOJ, No. 19-810, 19-957, 2020 WL 5816218 (D.D.C. Sept. 30, 2020) (Walton, J.)

Elec. Priv. Info. Ctr. v. DOJ, No. 19-810, 19-957, 2020 WL 5816218 (D.D.C. Sept. 30, 2020) (Walton, J.)

Re:  Request for unredacted version of report prepared by Special Counsel Robert S. Mueller III regarding his investigation into Russian interference in 2016 United States presidential election

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiffs' motion for summary judgment

• Exemption 3:  First, "the Court concludes that the Department appropriately withheld information pursuant to Rule 6(e) . . . ."  The court relates that "the Department has withheld information that was obtained as a result of grand jury subpoenas, as well as 'names and/or identifying information of individuals who were subpoenaed or actually testified before a federal grand jury (or information that might reveal that the witness was subpoenaed or testified before the grand jury) and information provided by these individuals in their grand jury testimony.'"  The court also rejects plaintiff's argument "that the 'information [redacted by the Department pursuant to Rule 6(e)] is outside the scope of Rule 6(e)'s secrecy provisions' because the 'information is sought for its own intrinsic value' and not the activities of the grand jury . . . ."  Additionally, responding to plaintiff's waiver argument, the court finds that "although the identity of Manafort as a grand jury witness may have been previously disclosed, '[c]itations to grand jury testimony would necessarily divulge the substance of the testimony,' . . . and the disclosure of any additional information would reveal more than what is publicly available . . . ."  "Therefore, the Court finds that there has been no waiver of information by the government through official acknowledgment as to any of the individuals identified by [plaintiffs in a different case]."
  
  Second, "the Court concludes that the Department appropriately redacted information from the Mueller Report that relates to intelligence sources and methods and therefore is protected from disclosure by Exemption 3 and the National Security Act."  The court relates that "the Department claims that the information redacted from the Mueller Report pursuant to Exemption 3 and the National Security Act 'relat[es] to investigative and information gathering techniques used' in national security investigations, and 'reflects material identified by the intelligence and law enforcement communities as potentially compromising sensitive sources, methods, or techniques.'"  "Specifically, the Department represents that '[s]ome information about and derived from investigative activities of [Federal Bureau of Investigation] personnel assigned to [ ] Special Counsel [Mueller] are contained in the [ ] [Mueller] Report.'"
   
• Exemptions 6 & 7(C):  "[T]he Court must grant the Department's motion for summary judgment and deny the plaintiffs' cross-motions as to the Department's withholding of information in the Mueller Report pursuant to Exemption 7(C)."  "Based on the Court's review of the unredacted version of the Mueller Report and the Department's public and ex parte representations to the Court, the Court concludes that, pursuant to Exemption 7(C), the Department has appropriately withheld information relating to the unwitting third parties, the individuals not charged with having committed crimes by the Special Counsel's Office, and the individuals merely mentioned in the Mueller Report."  "The Department has adequately explained the harms associated with releasing this information '[g]iven the intense public interest surrounding the [Special Counsel's Office's] work as well as the public and media scrutiny, and partisan attacks, that occur when any new fact is made public.'"  Additionally, the court finds that "[t]he Department is 'not at liberty to disclose the name of or identifying information about an individual referenced in law enforcement records, even if the requester already knows, or is able to guess, the individual's identity' . . . ."  Also, "contrary to [plaintiff's] suggestion, . . . 'the fact that information about [Special Counsel Mueller's] investigation . . . of [these individuals] is readily available to the public does not extinguish [their] privacy interest' . . . ."  "Furthermore, although the Court acknowledges that the public interest in the Special Counsel's investigation is substantial, the Court finds that the plaintiffs have failed to identify a public interest that would outweigh the individuals' privacy interest from having their names disclosed."  "[P]laintiffs have failed to show how the disclosure of individuals' names would 'contribut[e] significantly to public understanding of the operations or activities of the government' . . . ."
   
• Exemption 7(E):  "[T]he Court will grant the Department's motion for summary judgment and deny the plaintiffs' cross-motions as to the Department's reliance on Exemption 7(E)."  The court relates that defendant stated that "'release of the information withheld in this category would reveal specific non-public details about the use of techniques and procedures regarding investigative focus; information about the gathering and/or analysis of information; information directly implicating investigative targets, dates, and scope of investigatory operations; and information that would reveal investigative strategies for utilizing particular information gathered.'"  "[T]he Court finds that the disclosure of the withheld information 'necessarily discloses a technique or procedure used by [the Special Counsel's Office],' and that although the redacted information itself may not be 'a technique, procedure[,] or guideline,' with the disclosure of such information 'comes the knowledge of how the agency employs its procedures or techniques' . . . ."
   
• Exemption 7(A):  "Based on the Court's review of the unredacted version of the Mueller Report as well as the public and ex parte representations made by the Department, the Court concludes that the Department has appropriately withheld information pursuant to Exemption 7(A)."  The court relates that "the Department, pursuant to Exemption 7(A), has withheld FBI 'file names and serial numbers.'"  "The Department represents that there are a number of pending and ongoing law enforcement proceedings, . . . and that it has withheld 'FBI file numbers' that 'are not known to the general public because the release of a file numbering convention identifies the investigative interest or priority given to such matters[,]' the disclosure of which 'could result in the acknowledgment of the existence of unknown investigations or proceedings and divulge the scope/volume of the FBI's investigative efforts' . . . ."
   
• Exemption 5, Deliberative Process Privilege:  "Based on the Court's review of the unredacted version of the Mueller Report, the Court concludes that the Department has failed to satisfy its burden to demonstrate that the withheld material is protected by the deliberative process privilege."  "The Department's Exemption 5 withholdings fail because the Department has failed to show that the information is predecisional."  First, "the Court disagrees with the Department that 'the identities of the individuals against whom those criminal charges were considered but not pursued[ ] are [ ] protected pursuant to the deliberative process privilege.'"  The court finds that the "mere identities of individuals not charged with having committed crimes in this context are neither predecisional nor deliberative."  "Moreover, although purely factual material may be withheld if 'the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government’s deliberations,' . . . the Department has failed to show in certain instances – and the Court's review of the unredacted version of the Mueller Report confirms – that the identities of the individuals not charged with having committed crimes is so inextricably intertwined with information that the disclosure of which would reveal Special Counsel Mueller's deliberations."  "With respect to the remaining information that has been withheld pursuant to Exemption 5, the Court also concludes that the Department has failed to satisfy its burden to demonstrate that the withheld material is protected by the deliberative process privilege."  "The information withheld by the Department is not predecisional because, as the plaintiffs correctly note, . . . it is the decision of Special Counsel Mueller, . . . and such information is not protected by the deliberative process privilege."
  
  The court relates that "[t]he Department argues that 'post-decisional documents may still be covered under the deliberative-process privilege to the extent they recount or reflect predecisional deliberations,' . . . ."  "Although the Court agrees with the Department's recitation of the state of the law, it nonetheless finds that this case does not fall within the scope of those circumstances where courts have concluded that the agency's withholdings under Exemption 5 were appropriate."  "Here, . . . the Department has withheld information regarding decisions that were already final, rendering the withheld information as information that was 'made after the decision and designed to explain it,' which the Supreme Court has held is not privileged . . . ."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court finds that "'[defendant's statements] show[] that [the Department] made the required effort to segregate and disclose those portions that could be released,' and that '[t]he non-exempt portions of these documents that have been redacted are thus ‘inextricably intertwined with exempt portions' and need not be further segregated.'"  "And, based on the Court's own in camera review of the unredacted version of the Mueller Report, the Court concludes that 'there are no segregability problems in this case,' . . . and that 'all reasonably segregable information within has been released' . . . ."