Freedom Watch, Inc. v. Mueller III, No. 18-88, 2020 WL 1331954 (D.D.C. Mar. 23, 2020) (Sullivan, J.)

Freedom Watch, Inc. v. Mueller III, No. 18-88, 2020 WL 1331954 (D.D.C. Mar. 23, 2020) (Sullivan, J.)

Re:  Request for communications to and from media pertaining to activities of FBI, Robert Mueller, and his staff

Disposition:  Granting defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "DOJ has demonstrated that it has met its FOIA obligations by conducting an adequate and reasonable search for the responsive records from within OIP, SCO, and the FBI."  "DOJ's two declarations . . . 'explain in reasonable detail the scope and method of the search.'"  "Contrary to [plaintiff's]ex assertion that the FBI's determination as to its search failed to account for paper and other electronic records, . . . [the court finds that] [defendant's] declaration explains that the FBI determined that 'the most logical location for ‘communication’ records to or from the media would be within the e-mails of specific authorized employees who have contact with the media on a regular basis' . . . ."  The court finds that "[plaintiff's] next argument – that [defendant's] declarations fail to 'disclose who carried out the searches,' . . .  – is foreclosed by case law in this District."  The court finds that "[plaintiff] ignores that the 'by whom' requirement permits an 'agency [to] rely on an affidavit of an agency employee responsible for supervising the search, even if that individual did not conduct the search herself' . . . ."
   
• Exemption 5, Deliberative Process Privilege:  "[T]he Court . . . finds that DOJ has carried its burden of demonstrating that the withholdings fall under Exemption 5's deliberative process privilege."  The court relates that defendant's withheld "(1) 'deliberative discussions regarding press coverage and press inquiries'; and (2) 'deliberative notes regarding press coverage and press inquiries.'"  Regarding the first category, the court finds that "courts in this District have consistently held that Exemption 5 protects from disclosure 'media-related withholdings' reflecting an agency's 'ongoing decisionmaking about "how the agency's activities should be described to the general public."'"  Regarding the second category, the court agrees with defendants that "the redacted information in the 'research' and 'final response' columns is deliberative because:  (1) the notes summarize events, identify issues, and provide background information in order to determine the most important issues and information for senior SCO staff to review; and (2) SCO staff made decisions to include certain factual information in the notes during their research and preparation for a final response."  "DOJ goes on to argue that 'the culling of other factual information was, in and of itself, a necessary part of the SCO's deliberations.'"
   
• Exemptions 6 & 7(C):  "The Court . . . finds that DOJ properly withheld the redacted information under Exemptions 6 and 7(C)."  First, the court finds that "DOJ satisfies the first requirement of the Exemption 6 inquiry because the Supreme Court has broadly interpreted the phrase 'similar files,' recognizing that Exemption 6 covers all 'information which applies to a particular individual.'"  Second, the court notes that "'[t]he privacy interest in Exemption 6 is narrower than in Exemption 7(C), so if the withholdings satisfy the former, no examination of the latter is necessary.'"  Third, the court finds that "DOJ satisfies the first requirement of the Exemption 6 inquiry because the Supreme Court has broadly interpreted the phrase 'similar files,' recognizing that Exemption 6 covers all 'information which applies to a particular individual.'"  Fourth, the court finds that "DOJ has demonstrated that the individuals' privacy interests are substantial."  "OIP withheld the names and contact information of certain SCO and law enforcement personnel after '[c]onsidering the sensitive and often contentious nature of the work of the SCO, as well as the work law enforcement personnel conduct.'"  "OIP and the FBI withheld the personal e-mail addresses and telephone numbers of reporters on the basis that 'the release of such information could subject those individuals to unwarranted harassment in their personal time and personal lives.'"  "In addition, OIP and the FBI withheld the names and personal identifying information of third parties referenced in the records at issue to prevent unwarranted harassment."  "Finally, OIP redacted purely personal information of reporters, third parties, and DOJ employees, such as 'vacation details, holiday plans, religious observances, and other similar information unrelated to any government function or activity.'"  Fifth, the court finds that "[t]he privacy interests at stake here outweigh the public interest in the release of the redacted information."  Specifically, the court finds that "[plaintiff] has not demonstrated how the personal information of the government employees, reporters, and third parties will 'help the public stay informed about "what their government is up to."'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "The Court . . . finds that DOJ's Vaughn indices and declarations demonstrate that all reasonably segregable, non-exempt information has been released to [plaintiff]."  The court notes that defendants confirm that they "conducted a line-by-line review of the responsive documents to determine in good faith what material should be released consistent with FOIA's requirements."
   
• Litigation Considerations, In Camera Inspection:  "The Court need not conduct an in camera review because DOJ adequately describes its segregability analysis and justifies its withholdings under Exemptions 5, 6, and 7(C)."