Leopold v. DOJ, No. 19-3192, 2021 WL 124489 (D.D.C. Jan. 13, 2021) (Contreras, J.)

Leopold v. DOJ, No. 19-3192, 2021 WL 124489 (D.D.C. Jan. 13, 2021) (Contreras, J.)

Re:  Request for report prepared by independent monitor evaluating bank's anti-money laundering and sanctions compliance policies

Disposition:  Denying defendant's motion for summary judgment; denying plaintiffs' motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration:  Responding to plaintiffs' hearsay objection, "[t]he Court first reiterates that declarations submitted by agency personnel are appropriately considered on a motion for summary judgment in a FOIA case, as long as they satisfy the personal knowledge requirement of Rule 56."  "[T]he Court is satisfied that [three declarations] meet the requirement under Rule 56 that a declaration 'must be made on personal knowledge.'"  "The Court also will consider [one] affidavit of [one individual who "has 'served as the independent corporate compliance monitor' under the [deferred prosecution agreement] and that . . . authored the Report that 'set forth [his] findings and assessment of the then-current state of [the company at issue's]' compliance programs"] which appears on [a] public docket . . . and which the government submitted in support of their motion."  "Plaintiffs do not articulate why [this] affidavit, made upon 'being duly sworn,' . . . cannot properly be considered in support of the government's motion."  "The Court finds that the affidavit is 'made on personal knowledge' . . . and will therefore consider it when evaluating the government's claimed exemptions."  However, "[t]he other materials, which include the letters submitted in [a criminal] case . . . by DOJ, the Federal Reserve, and FCA, will not be considered."  "Each letter is a statement made out of court and the government has not established the applicability of any hearsay exception."  "The government could have, and probably should have, obtained sworn declarations from these agencies to support the claimed exemptions – such efforts would have been reasonable."  "Accordingly, the Court will only consider [the three agency declaration and one affidavit] to evaluate the applicability of the claimed exemptions."
   
• Exemption 4:  "The Court finds that Exemption 4 applies to the Report."  "The Report 'contains extensive proprietary, financial, and competitive business information about [the company at issue] and its customers.'"  "The 'proprietary, confidential, and competitive business information' included in the Report 'has traditionally been kept secret for the benefit of banks, customers and regulators alike.'"  "The Report contains detailed 'findings in relation to [the company at issue's] anti-money laundering and sanctions compliance around the world.'"  "Importantly, '[the company at issue] provided this sensitive banking information to the Monitor based on the express assurance that this information would remain confidential.'"  "Indeed, the Monitor Agreement stated that the reports prepared by the monitor 'will likely include proprietary, financial, confidential, and competitive business information' and that 'the reports and the contents thereof are intended to remain and shall remain non-public.'"  "With respect to what harm would result from disclosure, [defendant] states that '[t]he Report also provides extensive detail about [the company at issue's] sensitive proprietary information used in combatting financial crime' and 'information about the Bank's technology infrastructure, which is used to identify and analyze financial crime as well as the Bank's bespoke policies and procedures.'"  "The release of this information could disadvantage [the company at issue] and provide an unfair advantage to its competitors.'"  "Furthermore, the submitted materials explain how public release of the confidential information would dissuade [the company at issue] and others from cooperating with the government in the future."
   
• Exemption 8:  The court holds that "[t]he broad scope of Exemption 8's text covers the Report."  "Plaintiffs fail to appreciate the implications of the 'related to' portion of Exemption 8, choosing instead to focus on the second half of the exemption."  "The Court finds that the government's submission makes clear that, at the very least, the Report contains information 'related to examination, operating, or condition reports' prepared by, on behalf of, or for the use of the Federal Reserve."  "Moreover, the government's submission shows that the underlying purposes of Exemption 8 are served by its application here."  "According to [the one individual who "has 'served as the independent corporate compliance monitor' under the [deferred prosecution agreement]"], the Report 'identifies significant, current deficiencies in [the company]['s] [anti-money laundering] and sanctions compliance program.'"  "Public disclosure of such deficiencies could 'undermine public confidence' in the bank.'"  "More on point, however, is the second legislative purpose – to 'safeguard the relationship between the banks and their supervising agencies.'"  "[Defendant's] Declaration explains that confidentiality is 'the crux of a successful monitorship' because without it, 'domestic and foreign [financial institution] regulators, [financial institution] employees, and others upon whom the monitors rely may be unwilling to cooperate with the monitor.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "the government shall conduct a line-by-line review of the report to determine whether any information can be reasonably segregated and released."  "The government must, at minimum, provide greater detail on the basis for withholding the specific portions of the Report that [the court previously] concluded were appropriate for release to the public."  "This Court may conduct its own in camera review to assure itself of the basis for such withholding."