Leopold v. DOJ, No. 22-5300, 2024 WL 875794 (D.C. Cir. Mar. 1, 2024) (Rodgers, J.)

Leopold v. DOJ, No. 22-5300, 2024 WL 875794 (D.C. Cir. Mar. 1, 2024) (Rodgers, J.)

Re:  Request for report crafted by independent monitor pursuant to deferred prosecution agreement with bank charged with violating anti-money-laundering and sanctions compliance laws

Disposition:  Vacating district court’s grant of defendant’s renewed motion for summary judgment; remanding case

• Exemption 8; Litigation Considerations, Foreseeable Harm Showing:  “[The Court of Appeals for the District of Columbia Circuit] vacates the grant of summary judgment to the Department and the denial of [the requesters’] motion for summary judgment, and remands the case to the district court.”  The court finds that “[t]he record does not enable this court to conclude that the sequential inquiry was conducted or that the Department satisfied its ‘independent and meaningful burden’ to establish the absence of a material factual dispute that the Report cannot be disclosed without foreseeable harm to an interest protected by Exemption 8.”  “The district court acknowledged that the declarations were ‘relatively brief and somewhat conclusory,’ . . . yet referred in a footnote only to a brief discussion of foreseeable harm in its initial opinion.”  “The Department’s declarations fold a perfunctory assertion of foreseeable harm into their application of Exemption 8 to the entirety of the Report.”  “This appears to ‘ignore that the agency must specifically and thoughtfully’ consider foreseeable harm from disclosure of otherwise-exempt information, . . . including whether ‘partial disclosure of information is possible[]’ . . . .”  “The record does not enable this court to conclude that the sequential inquiry was conducted or that the Department satisfied its ‘independent and meaningful burden’ to establish the absence of a material factual dispute that the Report cannot be disclosed without foreseeable harm to an interest protected by Exemption 8.”  “The Department maintains that a redacted report would lack important context, . . . but that concern falls outside the scope of Exemption 8.”  “To the extent the Department also maintains that disclosure of any aspect of the Report would chill future cooperation by foreign regulators and financial institutions, . . . this assertion is insufficiently supported.”  “Because the Department’s declarations fail to explain how that harm would result from disclosure of every portion of the Report, it falls short of meeting the burden to ‘directly articulate[ ] “[a] link between the specified harm and the specific information contained in the material withheld.”’”