Lewis v. U.S. Dep't of the Treasury, No. 20-5120, 2021 U.S. App. LEXIS 8516 (D.C. Cir. Mar. 23, 2021) (per curiam)

Lewis v. U.S. Dep't of the Treasury, No. 20-5120, 2021 U.S. App. LEXIS 8516 (D.C. Cir. Mar. 23, 2021) (per curiam)

Re:  Request for certain communications concerning fifteen named individuals who were "'former or present representatives of the governments of Spain and Andorra'"

Disposition:  Affirming district court's grant of government's motion for summary judgment and denial of requester's cross-motion for summary judgment

• Exemption 7(A):  The Court of Appeals for the District of Columbia Circuit holds that, "[o]n the record at hand, and in view of the deference given to an agency's predictive judgment that disclosure will harm ongoing proceedings . . . there is no doubt that [the Financial Crimes Enforcement Network ("FinCEN")] met its burden with respect to Exemption 7(A)."  The court relates that "FinCEN withheld 25 groups of documents under Exemption 7(A)."  "FinCEN's Vaughn Index explicitly identifies 18 of these groups as related to pending proceedings involving the Andorran bank."  "FinCEN also submitted declarations affirming that the other seven groups, save for one document, are related to ongoing foreign proceedings concerning 'the facts underlying [FINCEN's rulemaking], and persons related to [the Andorran bank].'"  "The remaining document was properly withheld under Exemption 7(D), discussed below."  "[That document] should have been omitted from a previous declaration's list of documents withheld under Exemption 7(A)."  "FinCEN explained how release of all documents withheld under Exemption 7(A) would likely interfere with the ongoing proceedings, for instance, by revealing the scope and focus of those investigations and by chilling cooperation between FinCEN and its foreign counterparts."
   
• Exemption 7(D):  The Court of Appeals for the District of Columbia Circuit holds that, "on this record, FinCEN met its burden under Exemption 7(D)."  The court relates that "FinCEN withheld 31 groups of documents under Exemption 7(D)."  "The Agency explained in a declaration that the information in these documents was provided from foreign agencies either pursuant to express confidentiality agreements or in circumstances where an assurance of confidentiality could reasonably be inferred."  "FinCEN further explained that, because the information is so closely tied to those foreign agencies and their sources, revealing the substance of the information would likely reveal the identity of confidential sources."
   
• Exemption 5, Deliberative Process Privilege:  The Court of Appeals for the District of Columbia Circuit relates that "[t]he Agency withheld in full several groups of documents pursuant to both Exemption 5 and Exemptions 7(A) or 7(D)."  "Because these documents were properly withheld under Exemption 7(A) or 7(D), it is unnecessary to consider Appellant's arguments regarding Exemption 5."  "Only two groups of documents were withheld in full under Exemption 5 alone:  (1) drafts of a document eventually published in the Federal Register, containing redline edits and comments conveying the authors' opinions regarding the draft language, and (2) emails between FinCEN officials discussing issues related to posting comments on notices in the action against the Andorran bank pursuant to 31 U.S.C. § 5318A."  The court holds that "[t]he Agency's submissions adequately establish that these documents are predecisional and deliberative and, thus, were properly withheld under Exemption 5."  "[The requester] also challenges one group of documents that was withheld in part pursuant to Exemption 5."  The court also finds that "[t]he Agency properly redacted the documents, because they contained Agency officials' opinions regarding the content of a weekly report."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The Court of Appeals for the District of Columbia Circuit holds that "FinCEN's Vaughn Index and declarations attest that the Agency released all segregable material."
   
• Litigation Considerations, In Camera Inspection:  The Court of Appeals for the District of Columbia relates that "[i]n camera review is appropriate (1) when an agency's affidavits or declarations are conclusory, failing to describe the withheld documents or justifications for withholding 'in sufficient detail to demonstrate that the claimed exemption applies,' or (2) 'if there is evidence of agency bad faith.'"  The court finds that "[n]either circumstance applies here."  "The District Court did not abuse its discretion in declining to conduct in camera review of the disputed documents."