Gawker Media, LLC v. FBI, No. 15-1202, 2015 WL 6736800 (M.D. Fla. Nov 4, 2015) (Bucklew, J.)

Gawker Media, LLC v. FBI, No. 15-1202, 2015 WL 6736800 (M.D. Fla. Nov 4, 2015) (Bucklew, J.)

Re: Request for records concerning investigation of source and distribution of tape recording

Disposition: Granting in part and denying in part defendants' motion for summary judgment

• Litigation considerations, Asserting New Exemptions:  "The Court has previously stated that it will permit the FBI to assert FOIA exemptions other than 7(A)."  "As soon as the FBI no longer claimed that their entire investigative file was being withheld under exemption 7(A), the FBI identified more specific exemptions in its Vaughn Index and supporting declaration."  "[Plaintiff] has had an opportunity to object to those exemptions and the Court has had an opportunity to consider the exemptions along with [plaintiff's] objections."  "[Plaintiff's] objections and response to summary judgment does not change the Court’s decision to consider the additional exemptions."
   
• Exemptions 6 and 7(C):  "[T]he Court grants in part and denies in part the FBI and the EOUSA’s Motion for Summary Judgment as it relates to privacy exemptions."  The court relates that "the FBI has redacted the name of all of the key participants in this case, other than those who signed records authorizations."  The court explains that "[t]his case is unique in that the events surrounding the release of the . . . tape, including the names and roles of those involved, have been heavily documented in the media and in court filings in this Court, in the Florida state court, and in the California state court since October 2012."  The court then reviews each individual separately.  First, "the Court finds that [one individual's] name shall be unredacted because [that individual] does not have a privacy interest where [he] himself has voluntarily disclosed his role in this investigation, the government has identified [him] in public filings in this case, and [he] has been identified in the media as being involved in the . . . tape investigation."  Second, "the Court finds that [another individual] has publicly identified himself as being involved in the . . . tape investigation and his involvement has also been reported in the national news media."  Third, the court finds that "the names of [certain] attorneys that [appeared] . . . in open court in connection with this matter shall be unredacted."  Fourth, "[w]hile the Court acknowledges that not all government officials in every case act in the public domain, in this case, because the government has identified [one employee] as being involved in the investigation and [another employee] freely identified himself as also being involved, the redactions of their names serve no privacy purpose."  "Even if there is a privacy interest in the identity of government officials remaining private, the public interest in understanding how its government makes decisions is present and requires disclosure, especially in this case where the government chose not to prosecute an alleged extortionist."  Fifth, for similar reasons, the court orders the names of several radio personalities and a business manager to be unredacted.  The court also orders the release of all nicknames of the subject of the tape.  Finally, "because the Court does not have all of the EOUSA’s documents withheld on the basis of (b)(7)(C), the Court will issue a ruling on the EOUSA’s claimed privacy exemption once it has all of the withheld documents and can complete its in camera review."
   
• Exemption 7(E):  "The Court finds that the documents withheld on the basis of 7(E) are exempt from disclosure and grants summary judgment in favor of the FBI as to exemption 7(E)."  The court explains that it inspected these documents in camera.
   
• Exemption 5, Attorney-Client Privilege:  "The Court grants summary judgment in favor of the FBI as to exemption (b)(5)."  "Because the FBI’s Vaughn Index was not sufficient for the Court to rule on the FBI’s claimed exemption under (b)(5), the Court conducted an in camera review of the withheld documents and finds that the FBI has sufficiently invoked exemption (b)(5)."  "The EOUSA has also invoked exemption (b)(5), but the Court is waiting on the EOUSA to turn over to the Court some of the withheld documents."