Pike v. DOJ, No. 15-0301, 2016 WL 5108012 (D.D.C. Sept. 20, 2016) (Jackson, J.)

Pike v. DOJ, No. 15-0301, 2016 WL 5108012 (D.D.C. Sept. 20, 2016) (Jackson, J.)

Re: Request for audio recording and written transcript of plaintiffs' discussion

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiffs' motion for summary judgment

• Exemption 7, Threshold: "With respect to this preliminary question, this Court finds that the records at issue here – the audio recording of Plaintiffs' . . . conversation and its written transcript – 'unquestionably meet[ ] the threshold to invoke Exemption 7' because the government has shown that they were created by a cooperating witness 'at the FBI's direction during the FBI's criminal investigation into potential violations of multiple federal laws and regulations relating to health care fraud.'" "Moreover, the record evidence plainly establishes that there is a connection between these plaintiffs and a possible violation of federal law[.]"
   
• Exemption 7(A): "[B]ased on the record evidence that the government has presented, [the] Court finds that there is a reasonable likelihood that disclosure of the entire recording and transcript would interfere with the ongoing criminal investigation into Plaintiffs' activities and the potential criminal liabilities of third parties in a harmful manner." "First, Defendant has provided (ex parte and in camera) the declarations of DOJ and FBI officials to support the representation that there is an 'ongoing criminal investigation by DOJ and the FBI into Plaintiffs' activities and the potential criminal activities of third parties.'" Second, the court finds that "the government specifically states that disclosure of the audio recording and transcript of Plaintiffs' conversation 'would prematurely: (a) reveal the nature, scope, focus, or direction of the investigation; (b) identify suspects and alert them about the investigations, which would allow them to elude detection or tamper with evidence; and (c) compromise evidence and sensitive law enforcement information.'" The court also finds that "the mere fact that the government has chosen to release some parts of a protected document – and bear the brunt of the harm that results – does not a fortiori mean that releasing the entire document would not be harmful."
   
• Waiver: "[The] Court concludes that DOJ must release the portions of the written transcript that duplicate the excerpts that the government previously disclosed as part of the FCA complaint and press release." "DOJ does not dispute that quotes from the written transcript of the audio recording – a record that Plaintiffs have requested in the instant FOIA action – appeared in the complaint the government filed in a civil FCA case." "And, indeed, that complaint, which was publicly disclosed, reproduced excerpts from the written transcript verbatim; therefore, it is clear that those specific excerpts do in fact exist in the public domain." "Given this finding, this Court concludes that DOJ has waived its right to withhold these portions of the written transcript[.]" However, the court also finds that "[p]laintiffs are wrong to insist that the government's disclosure of some, but not all, of the transcript warrants a court order compelling the release of all of that document." "The same is true for the entirety of the audio recording." "Under binding precedent, written transcripts of recordings do not contain information that is identical to the audio recorded version."