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In the United States Court of Appeals for the District of Columbia Circuit USCA Case #16-5138 DocumentRECORD #1657109 NO. 16 -Filed:5138 01/24/2017 Page 1 of 59 ORAL ARGUMENT SCHEDULED FOR MARCH 3, 2017 In The United States Court of Appeals For The District of Columbia Circuit CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRIEF OF APPELLANT David L. Sobel Adam J. Rappaport LAW OFFICE OF DAVID L. SOBEL CITIZENS FOR RESPONSIBILITY AND 5335 Wisconsin Avenue, N.W., Suite 640 ETHICS IN WASHINGTON Washington, DC 20015 455 Massachusetts Avenue, N.W., Floor 6 (202) 246-6180 Washington, DC 20001 (202) 408-5565 Counsel for Appellant Counsel for Appellant THE LEX GROUPDC ♦ 1825 K Street, N.W. ♦ Suite 103 ♦ Washington, D.C. 20006 (202) 955-0001 ♦ (800) 856-4419 ♦ Fax: (202) 955-0022 ♦ www.thelexgroup.com USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 2 of 59 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to D.C. Circuit Rule 28(a)(1), Appellant Citizens for Responsibility and Ethics in Washington hereby certifies as follows: A. Parties and Amici. Plaintiff-appellant is Citizens for Responsibility and Ethics in Washington, a non-profit corporation. Defendant-appellee is the United States Department of Justice. There were no amici curiae in district court. B. Ruling Under Review. The ruling under review is the district court’s March 30, 2016 order, ECF Dkt. No. 37 (and incorporated memorandum opinion, ECF Dkt. No. 36), in Citizens for Responsibility and Ethics in Washington v. Department of Justice, Civ. No. 11-592-RJL (Hon. Richard J. Leon). The district court’s opinion is available at 2016 U.S. Dist. LEXIS 42576 and is reprinted in the Joint Appendix (“JA”) at __. C. Related Cases. This case has previously been before this Court. In Citizens for Responsibility and Ethics in Washington v. Dep’t of Justice, 746 F.3d 1082 (D.C. Cir. 2014), the Court reversed the district court’s grant of judgment for defendant and remanded the case for further proceedings. Counsel are aware of no related cases currently pending in this Court or in any other court within the meaning of D.C. Circuit Rule 28(a)(1)(C). i USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 3 of 59 CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1 and D.C. Cir. Rule 26.1, plaintiff-appellant Citizens for Responsibility and Ethics in Washington (“CREW”) submits its corporate disclosure statement. (a) CREW has no parent company, and no publicly-held company has a 10 percent or greater ownership interest in CREW. (b) CREW is a non-profit, non-partisan corporation organized under section 501(c)(3) of the Internal Revenue Code. Through a combined approach of research, advocacy, public education, and litigation, CREW seeks to protect the rights of citizens to be informed about the activities of government officials and to ensure the integrity of those officials. Among its principle activities, CREW routinely requests information from government agencies under the Freedom of Information Act (“FOIA”), and pursues its rights to information under the FOIA through litigation. CREW then disseminates, through its website and other media, both documents it receives in response to its FOIA requests and written reports based in part on those documents. ii USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 4 of 59 TABLE OF CONTENTS Page CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES .............. i CORPORATE DISCLOSURE STATEMENT ........................................................ ii TABLE OF AUTHORITIES ..................................................................................... v JURISDICTIONAL STATEMENT .......................................................................... 1 STATEMENT OF THE ISSUE ................................................................................. 1 STATUTES AND REGULATIONS ......................................................................... 1 STATEMENT OF THE CASE .................................................................................. 1 SUMMARY OF THE ARGUMENT ........................................................................ 9 STANDARD OF REVIEW ..................................................................................... 10 ARGUMENT ........................................................................................................... 11 I. The District Court Erred When it Permitted DOJ to Rely Upon Exemption 5 to Withhold Responsive Information ............................ 11 II. The District Court Erred When it Approved DOJ’s Withholding of Disputed Information Under Exemptions 6 and 7(C)..................... 23 A. Many Individuals Whose Names Likely Appear in the Withheld Material Have Only a Minimal Privacy Interest at Stake ...................................................................................... 25 B. As This Court Found, There is a Substantial Public Interest in the FBI Records at Issue in This Case ..................... 32 CONCLUSION ........................................................................................................ 36 iii USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 5 of 59 CERTIFICATE OF COMPLIANCE CERTIFICATE OF FILING AND SERVICE ADDENDUM iv USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 6 of 59 TABLE OF AUTHORITIES Page(s) CASES *ACLU v. U.S. Dep’t of Justice, 655 F.3d 1 (D.C. Cir. 2011) ......................................................... 23, 24, 27, 29 *August v. FBI, 328 F.3d 697 (D.C. Cir. 2003) ........................................ 12, 15, 16, 20, 21, 22 Charter Oil Co. v. Am. Emp’rs’ Ins. Co., 69 F.3d 1160 (D.C. Cir. 1995) ....................................................................... 17 Computer Professionals for Social Responsibility v. U.S. Secret Service, 72 F.3d 897 (D.C. Cir. 1996) ................................................................... 25, 26 CREW v. DOJ, 870 F. Supp. 2d 70 (D.D.C. 2012) ................................................................... 3 *CREW v. U.S. Dep’t of Justice, 746 F.3d 1082 (D.C. Cir. 2014) ..................................................2, 3, 7, 20, 24, 27, 32, 33, 34, 35 Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989)....................................................................................... 25 Hollis v. U.S. Dep’t of Army, 856 F.2d 1541 (D.C. Cir. 1988) ..................................................................... 25 Judicial Watch, Inc. v. FBI, No. 00-cv-745 (TFH), 2001 U.S. Dist. LEXIS 25732 (D.D.C. Apr. 20, 2001)................................. 31 Keys v. U.S. Dep’t of Justice, 830 F.2d 337 (D.C. Cir. 1987) ................................................................. 24, 29 * Authorities chiefly relied upon are marked with asterisks. v USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 7 of 59 *Maydak v. U.S. Dep’t of Justice, 218 F.3d 760 (D.C. Cir. 2000) ..................................................4, 5, 10, 12, 13, 14, 15, 18, 20, 21, 22 Multi AG Media LLC v. Dep’t of Agric., 515 F.3d 1224 (D.C. Cir. 2008) ..................................................................... 10 Nation Magazine v. U.S. Customs Serv., 71 F.3d 885 (D.C. Cir. 1995) ................................................................... 25, 29 Oglesby v. U.S. Dep’t of the Army, 79 F.3d 1172 (D.C. Cir. 1996) ....................................................................... 17 Ryan v. Dep’t of Justice, 617 F.2d 781 (D.C. Cir. 1980) ................................................................. 11, 22 Schrecker v. Department of Justice, 349 F.3d 657 (D.C. Cir. 2003) ....................................................................... 32 Stern v. FBI, 737 F.2d 84 (D.C. Cir. 1984) ................................................................... 24, 28 Stonehill v. IRS, 558 F.3d 534 (D.C. Cir. 2009) ................................................................. 14, 17 Wash. Post Co. v. U.S. Dep’t of Health & Human Serv., 795 F.2d 205 (D.C. Cir. 1986) ................................................................. 11, 22 Weisberg v. U.S. Department of Justice, 745 F.2d 1476 (D.C. Cir. 1984) ..................................................................... 31 Wilkins v. Jackson, 750 F. Supp. 2d 160 (D.D.C. 2010) ............................................................... 16 STATUTES *5 U.S.C. § 552 .......................................................................................................... 1 5 U.S.C. § 552(b)(6)................................................................................................. 23 vi USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 8 of 59 5 U.S.C. § 552(b)(7)(C) ........................................................................................... 23 28 U.S.C. § 1291 ........................................................................................................ 1 28 U.S.C. § 1331 ........................................................................................................ 1 RULE Fed. R. App. P. 4(a)(1)(B) ......................................................................................... 1 vii USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 9 of 59 JURISDICTIONAL STATEMENT This case is a challenge to the withholding of agency records requested under the Freedom of Information Act, 5 U.S.C. § 552. The district court had jurisdiction
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