Majuc v. DOJ, No. 18-566, 2022 WL 266700 (D.D.C. Jan. 28, 2022) (Mehta, J.)

Majuc v. DOJ, No. 18-566, 2022 WL 266700 (D.D.C. Jan. 28, 2022) (Mehta, J.)

Re:  Request for records concerning company's evasion of Sudanese sanctions

Disposition:  Granting defendant's motion for summary judgment   

• Litigation Considerations, Vaughn Index/Declaration:  "First, Plaintiffs contest the categorical approach taken by Defendant."  "The Vaughn Index in this case satisfies each of [the categorical approach's] requirements."  "[Defendant's declarant] explains that the withheld records 'consist entirely of business records submitted by [BNP Paribas, S.A. ("BNPP")] to the Department of Justice during the course of the Department's investigation into and prosecution of BNPP for violations of U.S. laws.'"  "The agency grouped these records into eight categories."  "Each category, as reflected in the Records Index, is described in some detail."  "As to each category, the Records Index sets forth the number of pages withheld, identifies the exemptions relevant to each category, and provides a short summary justification of the asserted exemption."  "By any measure, the Vaughn Index in this case is detailed and comprehensive.  It easily satisfies the requirements of a categorical approach."
  
  "Second, Plaintiffs challenge the sufficiency of the publicly filed [Defendant's] Declaration."  "To the extent the [Defendant's] Declaration is 'conclusory and short on detail'—and the court is not suggesting it is either—the ex parte submission more than fills in the gaps."  "Specifically, [Defendant's declarant] reviewed all of the withheld records and 'had multiple substantive discussions with an attorney in the Criminal Division's Money Laundering and Asset Recovery Section ("MLARS") who was involved in the Department's investigation into and prosecution of BNPP for violations of U.S. laws' and 'an MLARS subject matter expert who handles investigations and prosecutions involving financial institutions.'"  
   
• Waiver and Discretionary Disclosure:  "[T]he court considers Plaintiffs’ global argument that some records or portions of records must be released because they are in the public domain."  "Perhaps with one exception, Plaintiffs here have not met their burden."  "Plaintiffs have only pointed to generic descriptions in the Records Index that they suspect match documents identified in the factual proffer."  "The only exception is to a memorandum that is quoted, in part, in BNPP's factual proffer."  "But [Defendant's declarant] has attested that '[n]one of the records withheld in the September and November 2020 interim responses'—which are the only responses presently at issue—'match those quoted in the Statement of Facts' associated with BNPP's plea agreement."  "The court accepts these representations and therefore finds that the agency has met its ultimate burden of persuasion that none of the withheld records are in the public domain." 
   
• Litigation Considerations, Summary Judgment:  "Plaintiffs’ primary response is that the 'law of the case' doctrine forecloses Defendant from asserting Exemption 7(A) because the court denied summary judgment on that ground during the first round of briefing."  "The court denied summary judgment as to Exemption 7(A) because the record, as it stood, '[did] not extinguish all genuine issues of material fact.'"  "In particular 'it [was] unclear whether there is any ongoing enforcement proceeding.'"  "The court therefore denied both parties’ motions for summary judgment."  "Those denials were without prejudice."  "The court's initial denial therefore did not foreclose Defendant from reasserting Exemption 7(A)."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "And finally, the court finds that Defendant has met its segregability obligations."  "[Defendant's declarant] has sufficiently established that there is no segregable information within the withheld records."
   
• Exemption 3:  "Because the court finds that the agency properly withheld the first six categories under Exemption 7(A), the court does not reach Exemption 3 or any other exemption as to those categories."
   
• Exemption 4:  "[T]he court finds that the agency's withholding of the final two categories of records pursuant to Exemption 4 was proper."  "[T]he court focuses on whether the withheld records are of the type 'customarily kept private ... by the person imparting it,' in this case BNPP."  "The last two categories of records withheld pursuant to Exemption 4 consist of (1) '[c]ompliance memoranda authored by BNPP employees regarding BNPP's compliance with international financial embargoes and sanctions, including U.S. sanctions pertaining to Sudan, marked as FOIA/ FOIL confidential' and (2) '[m]emoranda prepared for BNPP by outside counsel for BNPP regarding various legal issues arising in the context of embargoed and sanctioned countries with whom BNPP engaged in business, including Sudan, marked as FOIA/ FOIL confidential.'"  The court notes that "'[t]his information is "commercial" within the meaning of Exemption 4, because it serves a commercial function and is of a commercial nature in that it is helpful or instrumental to BNPP's business interests and operations.'"  "The records 'contain large amounts of sensitive commercial information concerning . . . banking protocols and analyses of BNPP's transactions . . . assessments of BNPP's internal compliance policies with U.S. economic sanctions laws and financial embargoes, policies and protocols regarding transactional issues, and legal advice . . . regarding compliance with U.S. financial embargoes and related economic sanctions.'"  "And, notably, BNPP acted consistently with the non-public nature of these records:  it requested confidential treatment of the records under FOIA, marked the majority of records as confidential for purposes of FOIA, and requested that the Department of Justice not release the records publicly and maintain them in a nonpublic facility."
  
  "[Plaintiffs] argue 'the business practices DOJ seeks to shield are in and of themselves illegal, and thus not commercial.'"  "The court is unpersuaded."  "The last two categories of withheld records consist of internally drafted memoranda concerning BNPP's compliance program and memoranda drafted by outside counsel concerning the application of U.S. sanctions regimes to the bank."  "Plaintiffs have not shown that any such records are themselves 'unlawful or the product of inherently illegal activity.'"  "Plaintiffs [also] urge that the 'information is too outdated to have meaningful commercial consequences.'"  "That argument, however, rests on the assumption that to satisfy Exemption 4 an agency must demonstrate that release would cause harm to the records' producer, and as already discussed, Food Marketing rejected the need to make such a showing."  "Finally, Plaintiffs contend that 'certain records appear to contain information that is either in the public record or is of a type deemed noncommercial by this Court.'"  "The withheld records are not just regurgitated pages from the U.S. Code or Treasury regulations."  "They are memoranda prepared by employees and outside counsel that specifically address BNPP's compliance program and its conformance with U.S. sanctions and embargo laws and regulations."  "Such records are not 'inherently reflected in public documents.'"
   
• Exemption 7(A):  The court holds that "[t]he agency's withholdings easily meet these elements of Exemption 7(A)."  "The agency has established that there are law enforcement proceedings as to which the records pertain" and that "[t]hose proceedings are ongoing."  "The agency also has explained how release of each of the six categories of records would likely interfere with those proceedings."   
   
• Exemption 6 & 7(C):  Defendant withheld "the 'names and identifying information of BNPP employees' and the 'names and identifying information of outside counsel hired by BNPP.'"  "D.C. Circuit 'precedents give strong support to Government decisions to withhold names and identifying information from law enforcement records.'"  "On the other hand, '[t]he countervailing public interest in disclosure of the names and other identifying information of those appearing in the responsive documents' is usually 'weak.'"  "That is the case here, at least with respect to the BNPP employees’ names and identifying information."  "[Plaintiffs] contend that BNPP employees have diminished expectation of privacy because BNPP was found guilty of wrongdoing."  "Not surprisingly, Plaintiffs cite no case that stands for the proposition that an employee's privacy interest in criminal investigative files is reduced by virtue of their employer's admission of guilt."  However, the court holds that "the agency cannot withhold the names and professional identifying information of BNPP's outside counsel."  "This court so held in a similar case and will apply that determination here."