Jud. Watch, Inc. v. DOJ, No. 23-01485, 2024 WL 4039924 (D.D.C. Sept. 4, 2024) (Cooper, J.)

Jud. Watch, Inc. v. DOJ, No. 23-01485, 2024 WL 4039924 (D.D.C. Sept. 4, 2024) (Cooper, J.)

Re:  Request for employee rosters for office of Special Counsel Jack Smith

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiff’s motion for summary judgment

• Exemption 7(A):  “The Court first finds that DOJ properly invoked Exemption 7(A).”  The court relates that “[t]he only dispute is whether DOJ properly withheld the records under the claimed FOIA exemptions with respect to employees in the Special Counsel’s office who are at the GS-14 level or higher and whose employment has not already been disclosed to [plaintiff].” The court finds that “[t]o demonstrate that the rosters were compiled for law-enforcement purposes, DOJ must establish that the rosters ‘relate to anything that can fairly be characterized as an enforcement proceeding[.]’”  “Such proceedings include investigations where there exists (1) ‘a rational nexus between the investigation and one of the agency’s law enforcement duties’ and (2) ‘a connection between an individual or incident and a possible security risk or violation of federal law.’”  “The withheld records meet both criteria.”  “The SCO created them ‘to facilitate coordination and communication among the SCO investigators and staff as they conduct ongoing enforcement proceedings.’”  “Those proceedings include investigations into alleged illegal interference in the 2020 election and mishandling of classified documents and presidential records.” “The SCO’s investigations have a rational nexus to DOJ’s law-enforcement mission and are connected to both possible security risks and violations of federal law.”  “[Plaintiff] does not dispute that the Special Counsel’s investigations can fairly be characterized as enforcement proceedings.”  “Instead, it argues that the withheld records do not relate to the investigation because they are mundane lists of employees that all employers maintain regardless of whether they are investigating potential criminal conduct.”  “[Plaintiff] may be correct that employee rosters are common, and that most employee rosters are not related to ongoing enforcement proceedings.”  “But the fact remains that these employee rosters describe everyone working on active criminal investigations and were created to facilitate those investigations.”  “They therefore relate to enforcement proceedings.”
  
  “Next, the Court turns to Exemption 7(A)’s requirement that disclosure ‘could reasonably be expected to interfere with enforcement proceedings.’”  “The Court finds that DOJ has satisfied this requirement for two independent reasons.” “First, it appears logical and plausible that disclosing the rosters would expose SCO employees to threats and harassment.”  “The Special Counsel is investigating the former President of the United States and events surrounding one of the most fraught elections in recent American history.” “The SCO has attracted ‘unprecedented public scrutiny and partisan political attacks[.]’”  “‘Since the SCO began its work, harassing, vulgar, and/or threatening communications have been received by SCO staff, even including harassing physical mail sent to one SCO staff member’s private residence[.]’”  “SCO employees have also been targeted by ‘swatting’ attacks at their homes, including both the Special Counsel himself and at least one other member of the office.”  “An attorney in the SCO was also doxed, meaning that the attorney’s home address was publicly revealed without the attorney’s consent.”  “These threats and harassment are unlikely to end while the Special Counsel’s investigations continue, as harassment of SCO employees ‘has, if anything, only increased with time and with developments in the SCO’s activities.’”  “These threats make it harder for the SCO to do its work by distracting employees and disrupting their work.”
  
  “[Plaintiff’s] counterarguments are unpersuasive.” “[Plaintiff] first argues that DOJ’s claims of threats and harassment are ‘entirely conclusory, little more than speculation, and lack[ ] meaningful evidentiary support.’”  “But DOJ’s declarations offer detailed accounts of threats and harassment against SCO employees, including harassing mail sent to staffers’ home addresses, attempted swatting attacks, and doxing.”  “Again, all DOJ must do is articulate a rationale that ‘appears logical or plausible.’”  “And based on the threats and harassment DOJ has described in its declarations, the Court finds it is both logical and plausible that disclosure of employees’ names and their contact information will expose them to harassment and threats that will impede their ability to perform their public duties.”  “Nor does it matter that DOJ’s declarations contain hearsay.”  “‘FOIA declarants may include statements in their declarations based on information they have obtained in the course of their official duties,’ including information that they ‘were told’ by others.”
  
  “Second, it appears logical and plausible that revealing the names of SCO employees may reveal nonpublic information about the office’s ongoing investigations, including its focus and scope.”  “At first blush, an employee roster may not itself say much about an office’s workings.”  “But disclosing these rosters would reveal more than just employees’ names.” “Members of the public could search for the names of SCO employees to find additional information about the employees, including their home addresses, email addresses, and other contact information.”  “That identifying information could then enable someone to track or surveil employees, and ‘[r]ecent experience has shown that individuals conducting high-profile DOJ investigations, such as this one, may be surveilled[.]’”  “Surveilling investigators could then lead the public to ‘obtain[ ] non-public information about the pending proceedings, such as the identities of cooperating witnesses or potential defendants, the timing of the filing of charges, and the location of relevant evidence.’”  “The public could also find employees’ professional backgrounds and areas of expertise and use that information to surmise what the Special Counsel might be investigating.”  “Disclosing the list of employees would also reveal information about the size of the SCO and therefore the scope of the Special Counsel’s investigation.”  “Releasing the rosters would reveal to the public how many people were working in the SCO when the records were created.”  “Applying Exemption 7(A) to older records makes sense because even old information can reveal information regarding an ongoing investigation.”  “An increase in staffing could suggest that the Special Counsel expanded the investigation, while departures by employees who share expertise in one area of the law may suggest that the Special Counsel has changed direction.”  “To be sure, many SCO employees have revealed their identities by making public appearances in the office’s cases.”  “But the fact that some employees have been publicly revealed does not change that disclosing the records could reveal information about as-yet unidentified employees and nonpublic information about the scope, direction, and focus of the Special Counsel’s investigations.”  “In any event, DOJ provided to [plaintiff] the names of individuals whose affiliation with the SCO had already been made public as of the date of DOJ’s final production to [plaintiff].”  “While others have since made public appearances in the SCO’s cases, those appearances came after DOJ finalized its production.”  “DOJ is not required to update its completed productions.”
   
• Exemption 6; Exemption 7(C):  “Next, the Court also finds that DOJ properly invoked Exemptions 6 and 7(C).”  “Given their significant overlap, as well as the Court’s earlier finding that the rosters were compiled for law-enforcement purposes, the Court will address these two exemptions together.”  “On the privacy interests side of the balance, ‘investigating agents’ like the SCO’s employees have a ‘substantial interest in ensuring that their relationship to the investigations remains secret.’”  “Those privacy interests are all the greater here given the record of threats and harassment directed towards those affiliated with the Special Counsel’s investigations.”  “[Plaintiff] attempts to shortchange these interests by claiming that employees do not have an interest in shielding their names alone.” “That is mistaken for two reasons.”  “First, FOIA’s privacy exemptions cover ‘information which applies to a particular individual.’” “That broad ambit includes ‘bits of personal information, such as names and addresses[.]’”  “Second, SCO employees have an interest in shielding their connection to the Special Counsel’s investigations.”  “Disclosing their names would reveal those connections.”
  
  “On the other side of the balance, the public interest in the disclosure of SCO employees’ names is weak given that the undisclosed employees on the rosters ‘are not in leadership or supervisory positions in the SCO and do not hold policy-making authority.’”  “Indeed, [plaintiff] has not identified a single person who DOJ failed to disclose who qualifies as a senior official with policymaking authority, even though [plaintiff] purports to have identified fourteen individuals affiliated with the SCO who were not disclosed by DOJ.”  “Revealing the undisclosed names would do little to advance ‘[t]he only public interest that carries weight’ in the FOIA context:  ‘“the citizens’ right to be informed about what their Government is up to.”’”  “It may be correct that a Special Counsel’s lower level hiring practices could be suggestive of partisan bias.”  “But [plaintiff] has not given any reason to think that the SCO has engaged in prosecutorial misconduct in its investigations.”
   
• Litigation Considerations, Evidentiary Showing, Foreseeable Harm Showing:  The court holds that “[foreseeable harm] is not a high bar here, because foreseeable harm is ‘manifest’ where disclosure would cause ridicule or harassment.”  “For the reasons discussed above, DOJ has proven that disclosure would foreseeably cause harm by revealing nonpublic information about ongoing investigations and exposing SCO employees to potential harassment and threats.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  “The Court presumes that DOJ has complied with [this] obligation.”  “Here, DOJ has already released the names of individuals whose affiliation with the SCO had become public prior to DOJ’s final production.” “And DOJ has further explained that releasing redacted rosters could enable the public to estimate the size of the SCO because all the entries in the rosters are printed in the same font and size.”  “As such, the Court concludes that DOJ has produced all releasable information that could be reasonably segregated from the non-releasable portions.”