Prop. of the People, Inc. v. DOJ, No. 17-1193, 2021 WL 1700069 (D.D.C. Apr. 29, 2021) (Boasberg, J.)

Prop. of the People, Inc. v. DOJ, No. 17-1193, 2021 WL 1700069 (D.D.C. Apr. 29, 2021) (Boasberg, J.)

Re:  Request for records concerning former President Trump's connection with two-decades-old FBI gambling investigation

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 3:  Regarding defendant's use of Federal Rule of Criminal Procedure 6(e) in conjunction with Exemption 3, "[t]he Court's in camera review demonstrates that the information Plaintiffs seek would indeed reveal much about the grand jury's activity here."  "The six documents contain 'information that identifies specific records subpoenaed by a federal grand jury; and copies of specific records,' . . . disclosure of which 'would reveal the recipient of the Federal Grand Jury subpoena and the identity of the subjects of the Federal Grand Jury investigation.'"  "Such information 'tend[s] to reveal some secret aspect of the grand jury's investigation,' especially 'the strategy or direction of the investigation.'"  "For that reason, DOJ properly withheld these items."
  
  Regarding defendant's use of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 in conjunction with Exemption 3, the court finds that "[t]he problem here is somewhat unusual."  "The documents at issue are 2006 filings by the Government and resulting court orders concerning the release of Title III material to another law-enforcement agency that was conducting an investigation related to the surveillance."  "In the nineteen pages at issue, there is very little discussion of the information that was intercepted."  "As a result, the Court would typically order the release of most of the material."  "All of the pleadings and orders, however, were sealed by the issuing federal court."  "If they remain sealed, this Court has no power to order their release."  "The Government, which did not mention this issue in briefing, must first determine if the sealing orders remain in effect."  "If so, it cannot release the documents."  "If the orders are no longer extant, then the Government must release the material unrelated to the actual interceptions, although, pursuant to Exemption 7(C), discussed infra, it may redact all names of individuals and other identifying information mentioned in the documents."
   
• Exemption 7(A):  The court holds that "DOJ here has redacted a single case number written on a newspaper article about Trump and his criticism of then-Governor of Pennsylvania Ed Rendell."  "According to the Government, the redacted case number directly implicates 'an ongoing investigation with charges currently pending,' where disclosure may 'negatively impact the integrity of the ongoing investigation and cause harm to the pending prosecution.'"  "While 'the Government must be somewhat obscure in its public filings about the effect of disclosure so as not to risk spilling the very information it seeks to keep secure,' . . . DOJ here has provided substantive explanations for how disclosure may allow an individual currently under investigation to 'analyze the information in the documents pertinent to the investigation' and identify potential witnesses or 'counteract evidence developed by investigators.'"  "It has thus met its burden in showing that disclosure could interfere with ongoing enforcement proceedings." 
   
• Exemption 6 & 7(C):  The court holds that "[t]he Government's withholdings are appropriate."  The court relates that "[t]he documents, which were largely withheld in full, include '[h]andwritten interview notes for a third party individual,' . . . 'FBI Form[s] FD-302 documenting interview[s] with third party individual[s],' . . . '[r]eports documenting information provided by a third party individual' or 'related to third party individuals of investigative interest,' . . . 'documents gathered from a third party,' . . . the name of the Port Director of the Los Angeles International Airport on a letter responding to a FOIA request, . . . and 'FBI Electronic Communication (EC) documenting information gathered for the captioned investigation.'"  The court finds that "[t]o the extent, then, that individuals can be identified via information contained in the documents at issue, there is little question that '[t]he privacy interest at stake is substantial.'"  "The countervailing public interest presented by Plaintiffs in no way overcomes the privacy interest third parties have in keeping their identities unassociated with federal investigations."  The court explains that "there is no evidence of . . . misconduct here."  Finally, "the Court's in camera review reveals that the information here is fully intertwined with the content of the records."  "'[T]he non-exempt information cannot be reasonably segregated without either compromising the purpose of the FOIA exemptions or offering meaningless words or phrases.'"  "The Government's withholdings are appropriate."
   
• Exemption 7(D):  The court relates that "[t]he Government has invoked 7(D) to withhold in their entirety two subpoenas and an attachment 'issued for the purpose of rendering assistance to a foreign government.'"  The court finds that "the Government has provided affidavits supporting its claim that the foreign government at issue 'provided information under an express assurance of confidentiality' during the course of a cooperative investigation."  "[I]t has demonstrated the agency's policy and practice with regard to foreign governments as well as specific facts as to this government and its confidential relationship."  "Through its review, the Court concludes that release of the documents at issue would directly violate that assurance of confidentiality."  "Further, it finds nothing of value to segregate given the length of the documents and the interwoven nature of the information."  "DOJ thus appropriately withheld these documents."
   
• Exemption 7(E):  The court holds that "Defendant's withholdings under Exemption 7(E) are improper, and the relevant documents should be disclosed."  "That said, any names, addresses, or identifying information may be redacted under 7(C)."  The court relates that "[t]he Government has last partially withheld three pages of surveillance records under Exemption 7(E) . . . ."  The court finds that "[t]here is no dispute that the records here meet the first requirement:  surveillance logs sit in the heartland of law-enforcement records."  "DOJ's luck runs out at the second hurdle."  "All parties agree that physical surveillance in the form of a law-enforcement agent watching an individual and reporting her movements is generally known to the public."  "This should be the end of the matter, but the Government claims that 7(E) also protects 'the non-public details of when/where/how the FBI conducted the surveillance in this particular investigation.'"  "In Defendant's view, releasing the dates and logs from surveillance over twenty years ago 'would allow current and future subjects of FBI investigations and other potential criminals to develop and utilize countermeasures to defeat or avoid different types of surveillances.'"  "DOJ's explanation here fails to demonstrate 'that release of [these] document[s] might increase the risk "that a law will be violated or that past violators will escape legal consequences."'"  "Having reviewed these logs, the Court finds nothing that bad actors could make use of, and the Government has generally agreed that logs memorializing the physical surveillance of a subject to report his movements is not the kind of law-enforcement technique protected by 7(E)."