Heritage Found. v. DOJ, No. 24-645, 2026 WL 1766549 (D.D.C. June 19, 2026) (Friedrich, J.)

Heritage Found. v. DOJ, No. 24-645, 2026 WL 1766549 (D.D.C. June 19, 2026) (Friedrich, J.)

Re: Request for certain records from Special Counsel Robert K. Hur’s investigation of former President Joseph R. Biden, Jr.

Disposition:  Denying intervenor’s motion for preliminary injunction

• Reverse FOIA; Exemption 6; Exemption 7(C):  The court relates that “[plaintiffs] bring this action under the [FOIA] for certain records from Special Counsel Robert K. Hur’s investigation of former President Joseph R. Biden, Jr.”  “The Department of Justice (Department) initially withheld requested transcripts and audio recordings under several FOIA exemptions.”  “Recently, the Department reversed course and represented that it intends to disclose those materials, with redactions, to the plaintiffs and the House Judiciary Committee on June 15, 2026.”  “Biden intervened to defend the withholdings.”  The court finds that “Biden is unlikely to show that the Department’s decision to disclose the Zwonitzer materials, as currently redacted, is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’”
  
  First, “the Court agrees with the persuasive opinions of other judges of this Court in concluding that the APA authorizes judicial review of agency decisions to disclose records protected by the Privacy Act.” “As a threshold matter, Biden can challenge the agency’s disclosure decision through a ‘reverse-FOIA’ suit under the APA.”  “‘Section 10(a) of the APA provides that “a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action . . . , is entitled to judicial review thereof.”’”  “Release of the Zwonitzer materials would leave Biden ‘adversely affected or aggrieved’ by the Department's decision.”  “Accordingly, ‘review of [the Department’s] decision to disclose [Biden’s personal records] is available under the APA.’”  “The Department’s decision is not ‘committed to agency discretion by law.’”  “The Privacy Act provides a ‘meaningful standard against which to judge the agency’s exercise of discretion’ in reaching its voluntary disclosure decision.” “The Act commands that ‘[n]o agency shall disclose any [covered] record . . . except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains’ unless an enumerated exception applies.”  “The Privacy Act is enforceable through the APA in this voluntary disclosure context because there is no other adequate remedy.”  “The APA authorizes judicial review of ‘final agency action for which there is no other adequate remedy in a court.’”  “Here, the Privacy Act’s remedies provision speaks only of monetary damages for intentional and willful disclosures, . . . and injunctive relief for the amendment and disclosure of personal records improperly withheld . . . .”  “Those provisions do not offer the declaratory and injunctive relief against the disclosure of records that Biden seeks here, nor do they explicitly forbid such relief.”  “The Court thus concludes that the Act’s enumerated remedies are ‘not the kind of “special and adequate review procedure” that will oust a district court of its normal jurisdiction under the APA.’”  “The Act’s silence as to other remedies does not furnish the sort of ‘clear and convincing evidence of a contrary legislative intent’ necessary to overcome the general presumption of judicial review under the APA.”  “That said, ‘[the] Court is mindful that the availability of injunctive relief under the APA in circumstances similar to those presented here is an unsettled question with which other courts are actively wrestling.’”  “[T]he Court agrees with the persuasive opinions of other judges of this Court in concluding that the APA authorizes judicial review of agency decisions to disclose records protected by the Privacy Act.”
  
  “Unlike the Privacy Act, FOIA contains no meaningful standard against which to assess an agency’s decision to disclose certain sensitive materials.”  “The Department’s decision whether to invoke a particular FOIA exemption is ‘committed to agency discretion by law.’”  “The plain text of FOIA does not require the government to invoke every applicable exemption; it merely clarifies that an agency’s obligation to ‘make available to the public information’ within FOIA’s ambit, . . . ‘does not apply to matters that are’ subject to one of the nine enumerated exemptions.”  “Because the Department is under no ‘affirmative dut[y] . . . to withhold information sought’ under FOIA’s exemptions, . . . its determination that they do not apply here would be ‘committed to agency discretion by law,’ . . . absent the Privacy Act’s (or another statute’s) external constraints on disclosure.”  “This point is ultimately academic because, as discussed below, the legality of disclosure under the Privacy Act here turns on whether the Department abused its discretion in determining that the FOIA exemptions did not apply.”
  
  “Because Biden can press his Privacy Act claim through the APA, the question is whether the Department’s decision to disclose the Zwonitzer materials is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’”  “The parties do not dispute that the Privacy Act applies to the Zwonitzer materials, which are ‘information about an individual that is maintained by an agency.’” “Accordingly, the Privacy Act prohibits disclosure of the Zwonitzer materials ‘except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains’ unless an enumerated exception applies.”  “The relevant exception here applies when ‘disclosure of the record would be . . . required under section 552 of this title.’” “Section 552 is FOIA, which ‘requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material.’”  “The legality of the Department’s decision thus turns on whether FOIA ‘require[s]’ disclosure of the Zwonitzer materials.” “The Department’s initial answer to that question was no because ‘[t]he withheld audio recordings and portions of the transcripts are protected by FOIA’s Exemptions 6 and 7(C), as their disclosure would constitute a severe invasion of privacy with little to no meaningful or cognizable counterbalancing public interest.’”  “But, after receiving a request from the House Judiciary Committee and redacting additional portions of the materials, the Department decided that ‘the redacted Zwonitizer [sic] Materials are required to be provided to the FOIA requesters.’”  “The Department found that ‘Biden’s reduced privacy interests are outweighed by the significant public interest in the disclosure of the redacted Zwonitzer Materials.’”
  
  “Biden argues that the agency’s new position is ‘arbitrary and capricious and an abuse of discretion, in violation of the APA[]’ . . . (1) because the Department’s decision was explained only by post hoc rationalizations . . . ; (2) because Exemptions 6 and 7(C) mean that disclosure is not required under FOIA and is thus barred by the Privacy Act . . . ; and (3) because the Department’s decision was politically motivated . . . .” “First, the Department’s decision-making process is supported by more than post hoc rationalizations.”  “Here, the Department offers [a] declaration . . . , which describes the redaction negotiations and decision-making process leading up to the Department’s final decision to disclose the Zwonitzer materials.” “That affidavit alone does not an administrative record make.”  “But [defendant’s declarant] also explained the Department’s grounds for disclosure in an April 15, 2026 email to Biden’s lawyers leading up to its final May 5, 2026 decision.”  “[The declarant’s] email explained that Hur’s ‘public[ ]’ and ‘explicit[ ]’ reliance on the Zwonitzer materials ‘increases the public interest in and need to access that item of information – essentially, without such access, the public would lack access to the complete record of the basis of the decision by the Special Counsel.’”  “Although [defendant’s] declaration contains more detail about, for example, congressional inquiries than his contemporaneous email, ‘there is nothing improper in receiving declarations that merely illuminate reasons obscured but implicit in the administrative record.’”  “Accordingly, the Court will consider [the defendant’s] declaration and his April 15, 2026 email as part of the administrative record.” 
  
  “Second, on the record before this Court, the Department’s disclosure decision does not appear to be ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’”  “The Department determined that ‘reduced privacy interests are outweighed by the significant public interest in the disclosure of the redacted Zwonitzer Materials’ such that Exemptions 6 and 7(C) do not apply.”  “The Department exercised discretion in weighing the factors that underlie Exemptions 6 and 7(C).”  “As an initial matter, the change in position here was obvious: the Department once withheld these documents from the plaintiffs under FOIA; now it seeks to release them.”  “‘Once a change in agency position is identified, the doctrine poses a second question:  Did the agency display awareness that it is changing position and offer good reasons for the new policy?’”  “The answer to this question is yes.”  “The Department acknowledged that ‘[i]n or about February 2026, the Department reassessed its prior decision,’ ‘provided notice to President Biden’s counsel of its preliminary view that the Zwonitzer Materials should be disclosed,’ and engaged in ‘extensive consultation’ before reaching its final decision.”  “The Department also identified reasons for its new position:  Biden’s privacy interests had waned after extensive redactions and were ‘outweighed by the significant public interest in the disclosure of the redacted Zwonitzer Materials.’”  “The Department’s disclosure decision was reasonable under the deferential APA standard. Start with Biden’s privacy interests.”  “In negotiations with Biden’s lawyer, the Department made redactions where it determined that ‘the privacy interests of the President and other third parties . . . over[ro]de the cognizable public interest in the audio and transcript.’”  “Biden[] says that his ‘privacy interests are tremendous’ because, among other things, ‘portions of the audio recordings remaining at issue took place in the context of broader conversations between President Biden and his writing assistant that involved highly personal topics, including the illness and death of [his] son.’” “The Court agrees that ‘government officials do not surrender all rights to personal privacy when they accept a public appointment.’”  “But having reviewed the Zwonitzer materials in camera, the Court finds that Biden’s privacy arguments largely overlook the Department’s recent redactions and reasoning.” “After the latest round of redactions, the Zwonitzer materials contain no mention of highly sensitive topics like illness or death, nor do they mention any non-public persons, including members of Biden’s family.”  “Biden insists that, even if the Department ‘teased apart’ his ‘personal and political lives,’ ‘the fact that these conversations included intimate discussion of [his] family life illustrates their private nature.’”  “But, as noted, Biden and Zwonitzer covered a number of topics, not all of which were personal in nature.”
  
  “Turning next to the Department’s articulation of ‘the significant public interest in the disclosure of the redacted Zwonitzer Materials,’ . . . the Department explained that Congress and the public have an interest in Hur’s investigation and declination decision . . . .”  “The curated set of Zwonitzer materials ‘constituted both the primary evidence of the 2017 wrongful disclosures, as well as the primary basis for his decision to decline prosecution of President Biden with respect to these wrongful disclosures.’”  “The Department explained that ‘the integrity of a Special Counsel’s investigation constitutes a matter of paramount public interest’ and that Attorney General Merrick Garland’s decision to release the Report turned on his determination ‘that the Hur Report addressed “evidence that would warrant the belief by a reasonable person that government impropriety might have occurred.”’” “Moreover, the Department elaborated that Biden had heightened the public’s interest by ‘challeng[ing] the fairness, scope and propriety of the Hur Report and Mr. Hur’s handling of Zwonitzer Materials.’”  “As to the public interest in the audio – rather than the transcripts alone – the Department explained that Hur ‘relied on matters of “tone” that could only be evaluated by reviewing the audio.’”  “Biden’s arguments about the public’s interest are unavailing.”  “He says that ‘any light that might be shed on the Special Counsel’s investigation by the public disclosure of these materials is de minimis,’ . . . particularly in light of the Department’s release of specific portions of the transcripts of the Zwonitzer interviews that Hur quoted in his report, . . . and the Department’s release of audio recordings of Biden’s interview with Hur . . . .”  “But the D.C. Circuit has ‘repeatedly recognized a public interest in the manner in which the DOJ carries out substantive law enforcement policy.’” “To the extent that Biden contests whether [NARA v. Favish, 541 U.S. 157 (2004)’s] ‘evidentiary requirements’ regarding allegations of government impropriety are met here, . . . he ignores the D.C. Circuit’s more recent and binding pronouncement that the public interest in law enforcement records under Exemption 7(C) extends to public records that ‘would likely reveal much about . . . the DOJ’s exercise of its prosecutorial discretion: whether the government had the evidence but nevertheless pulled its punches,’ . . . which [defendant’s declarant] echoed in his email . . . .”
  
  “Finally, Biden’s general allegations of political motivation do not vitiate the Department’s reasonable weighing of personal privacy and the public interest.”  “Biden argues that ‘a change in administration does not give the Department of Justice license to make decisions motivated by the sitting President’s well-documented animosity toward his predecessor.’”  “But ‘a court may not reject an agency’s stated reasons for acting simply because the agency might also have had other unstated reasons.’” “In all, Biden is not likely to succeed on the merits of his cross-claims against the Department because he has not made a clear showing that the Department abused its discretion in ‘determin[ing] that President Biden’s reduced privacy interests are outweighed by the significant public interest in the disclosure of the redacted Zwonitzer Materials’ and concluding that ‘FOIA Exemptions 6 and 7(C) do not apply[ ] and the redacted Zwonitizer [sic] Materials are required to be provided to the FOIA requesters.’”  “Because the Department’s determination that it was required to produce the Zwonitzer materials under FOIA was not ‘arbitrary, capricious, [or] an abuse of discretion,’ . . . its decision is ‘in accordance with,’ . . . the Privacy Act’s exception for ‘disclosure of the record[s] . . . required under [FOIA][]’ . . . .”
  
  “The Court emphasizes that its evaluation of Biden’s likelihood of success on the merits in this case is unique in several ways.” “First, this case involves an unusually strong public interest in the release of law enforcement materials to outweigh the privacy interests protected by FOIA’s exemptions.”  “In particular, (1) while serving in the position of Special Counsel, (2) Hur prepared a report detailing evidence that the then-sitting President had, among other things, disclosed classified information to his biographer, and (3) [the] Hur report explicitly relied on the Zwonitzer materials in deciding not to prosecute Biden because of his mental state.” “Attorney General Garland, in turn, (4) released Hur’s report to the public, leading to (5) immense lay and congressional interest in the Special Counsel’s Office, Hur’s findings about Biden’s mental state, and Hur’s ultimate decision not to prosecute the sitting President.”  “These unparalleled circumstances account for the high degree of public interest in materials that were gathered during the course of a law enforcement investigation that resulted in no criminal charges.”  “Second, the privacy interests in this case – though substantial – are mitigated by the Department’s extensive redactions, as reviewed by the Court in camera.”  “As now redacted, the Zwonitzer materials contain no information about Biden’s family or other private persons.”  “And while public figures maintain certain privacy rights, the Department did not abuse its discretion in finding that nothing in the remaining Zwonitzer materials is sensitive enough to outweigh the public’s unusually strong interest.” “Finally, ‘a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.’”  “On this preliminary record, Biden simply has not carried that burden as to his likelihood of success on the merits.”
  
  Regarding irreparable harm, the court finds that “[t]here is no question of imminent injury to Biden here given the Department’s looming disclosure deadline.”  “Biden says that ‘the harm caused by the disclosure of [his] private conversations will be irreparable’ because ‘[n]o judicial remedy could un-ring the bell or fairly compensate President Biden for the perpetual intrusion on his and his family’s privacy.’”  “The Court agrees that – on these facts involving the frank words of a public figure in his home – disclosure of the Zwonitzer materials risks irreparable harm to Biden’s privacy interests and his reputation.”  “The severity of Biden’s irreparable injury is less clear.”  “Biden offers little in the way of specific details about the types of harm he foresees, especially in light of related information already in the public domain like the Hur Report and Biden’s deposition with the Special Counsel.”  “And courts are generally reluctant to find general harms to personal reputations to be irreparable.”  “Moreover, not all of Biden’s potential harm here is irreparable because the Privacy Act provides a private right of action for ‘actual damages’ and attorney fees against the United States in the case of a violation.”
  
  “Finally, the Court ‘must carefully balance the equities by weighing the harm to the moving party and the public if there is no injunction against the harm to the government and the public if there is.’” “Biden has not identified any public harm that would arise absent an injunction in this case.”  “And, as with the Department’s FOIA balancing discussed above, the harm to Biden’s diminished privacy interest is outweighed by the public’s interest in the Zwonitzer materials and FOIA’s ‘policy of broad disclosure of Government documents in order to ensure an informed citizenry, vital to the functioning of a democratic society.’”