Lewis v. Dep't of Treasury, No. 17-0943, 2020 WL 1667656 (D.D.C. Apr. 3, 2020) (Friedrich, J.)

Lewis v. Dep't of Treasury, No. 17-0943, 2020 WL 1667656 (D.D.C. Apr. 3, 2020) (Friedrich, J.)

Re:  Request for records concerning rulemaking action in which Financial Crimes Enforcement Network ("FinCEN") imposed anti-money laundering measure against certain bank

Disposition:  Granting defendant's second motion for summary judgment; denying plaintiff's second cross-motion for summary judgment

• Exemption 7, Threshold:  The court holds that "FinCEN has met the necessary threshold showing for Exemption 7."  The court finds that "FinCEN has established that the withheld documents were compiled for law enforcement purposes because all of the documents relate to investigations into BPA's alleged money laundering by FinCEN and other government agencies."  "FinCEN’s role includes 'support[ing] government initiatives against money laundering,' . . . and it has the authority to enforce the Bank Secrecy Act and Section 311 of the USA PATRIOT Act . . . ."  The court finds that "[w]hile FinCEN is indeed a 'mixed function agency,' . . . agencies that have both civil and criminal enforcement duties still can invoke Exemption 7 as long as they compiled the records for law enforcement purposes."  "Exemption 7 applies not only to domestic law enforcement purposes, but also to foreign law enforcement purposes . . . therefore [records concerning FINCEN's aid for foreign law enforcement investigations] falls under the [Exemption 7] threshold."
   
• Exemption 7(A):  "[The] Court previously found that FinCEN did not provide enough information to meet its burden under the categorical approach and directed that they 'supplement the record by (1) confirming the status of the anticipated or pending investigations, (2) providing greater detail about how the withheld documents were assigned to the various functional categories, and (3) providing greater clarity about how the document types and functional categories set forth in [defendant's] declaration and the Vaughn Index fit together and relate to the anticipated or pending law enforcement investigations identified in [defendant's] declaration.'"  The court finds that "FinCEN's two additional declarations and its two revised Vaughn Indexes provide the necessary additional information to show that disclosure of each category of documents could 'reasonably be expected to interfere with enforcement proceedings.'"  Additionally, the court finds that "[defendant's] declaration confirms that the documents withheld under Exemption 7(A) relate to an ongoing investigation by a foreign jurisdiction."  "FinCEN also provided sufficient detail about its functional categories to address how the disclosure of documents in each category would frustrate enforcement proceedings."  The court concludes that "FinCEN has provided sufficient detail in its Vaughn Indexes and the . . . declarations to demonstrate the specific risk of harm that disclosure would pose to the ongoing foreign investigation."
   
• Exemption 7(D) & Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "FinCEN has . . . properly invoked Exemption 7(D)."  The court finds that "FinCEN has demonstrated that, based on the specific facts at issue here, disclosing any information contained in the documents would reveal the identity of confidential sources '[b]ecause the information exchanged is so closely tied to those foreign jurisdictions and the sources maintained by FinCEN’s foreign counterparts.'"  Additionally, the court finds that "FinCEN need not disclose otherwise non-exempt information that is 'inextricably intertwined' with exempt information about its confidential sources."  "FinCEN represents that it conducted a thorough review of each document and concluded that no material was reasonably segregable . . . and agencies are entitled to a presumption that they disclosed reasonably segregable material . . . ."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that defendant appropriately withheld certain documents and emails in full pursuant to Exemption 5.  The court relates that "[t]he first set of documents that FinCEN withheld in full under Exemption 5 are drafts of a document entitled 'Financial Crimes Enforcement Network; Withdrawal of Notice of Proposed Rulemaking Regarding Banca Privada d’Andorra' that was eventually published in the Federal Register."  The court finds that "[t]hese drafts were predecisional because they were prepared to help FinCEN officials finalize the language in the agency's proposed rulemaking regarding BPA."  "The drafts are also deliberative because they contain comments and redline edits that 'reflect[ ] the give-and-take of the consultative process' between FinCEN officials regarding what material the final document should include."  The court relates that "[plaintiff] contends that FinCEN may not withhold these drafts under the deliberative process privilege because FinCEN eventually adopted them as a formal policy."  The court finds that "the Vaughn Index notes that these documents differ from the final documents posted because they 'contain comments and redline edits that convey the authors' opinions regarding that draft language.'"  Additionally, the court relates that "FinCEN also withheld several emails in full under the deliberative process privilege of Exemption 5, including 'communication[s] between FinCEN officials on posting BPA comments” and “an email communication and clearance tracker between FinCEN officials on the BPA overview.'"  The court finds that "[t]hese emails are predecisional because they document intra-agency discussions about posting comments on the Section 311 rulemaking action against BPA before the comments were posted, so the officials were 'still in the process of deciding what to do.'"  "These discussions were geared toward deciding which comments FinCEN should post."  "The emails are also deliberative because they involve 'ongoing back-and-forth' discussions about 'pending issues related to the comments and how to handle them.'"
  
  The court also finds that defendant appropriately withheld portions of email conversations in part.  The court finds that certain "emails are predecisional and deliberative because they involve conversations about how to formulate the agency's official response to the inquiry," certain emails "are predecisional because they involve subordinate FinCEN officials 'conveying nonfinal plans' prior to the agency's ultimate decision about which comments to post, and they are deliberative because they involve 'the decision making process about what will be posted,'" and certain 'portions are predecisional because they contain discussions about what the Enforcement Division will include in its weekly updates and they are deliberative because they include 'the authors' opinions' regarding those decisions."
   
• Litigation Considerations "Reasonably Segregable" Requirements:  The court holds that "FinCEN has complied with its obligation to provide any 'reasonably segregable' information."  "In each section of its Vaughn Index, FinCEN represents that it conducted a 'thorough' document-by-document review of that set of documents and concluded that 'no additional meaningful, non-exempt information' could be reasonably segregated and released."  "The court also finds that "[defendant] also confirms in his sworn declaration that 'no non-exempt information exists that can be reasonably segregated and released.'"
   
• Litigation Considerations, In Camera Inspection:  The court holds that "[t]he record also lacks any evidence of bad faith by the government."  "Further, [defendant has] provide[d] information sufficient to place the documents within the exemption category."  "Accordingly, the Court denies [plaintiff's] request for in camera review."