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).

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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.

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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

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CERTIFICATE OF COMPLIANCE

CERTIFICATE OF FILING AND SERVICE

ADDENDUM

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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.

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*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

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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

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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 under 28 U.S.C. § 1331. It entered judgment on March 30, 2016.

Plaintiff-appellant filed a notice of appeal on May 26, 2016, within the 60 days allowed by Federal Rule of Appellate Procedure 4(a)(1)(B). This Court has appellate jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUE

Whether the district court erred in upholding the United States Department of Justice’s (“DOJ”) reliance on Exemptions 5, 6, and 7(C) of the Freedom of

Information Act (“FOIA”) to withhold requested information.

STATUTES AND REGULATIONS

This litigation involves the application of the FOIA, 5 U.S.C. § 552, which has been reproduced in the Addendum to this brief.

STATEMENT OF THE CASE

This appeal arises from a FOIA request filed with the Federal Bureau of

Investigation (“FBI”), a component of defendant-appellee U.S. Department of

Justice (“DOJ”), on October 19, 2010. The request sought information related to

DOJ’s investigation of former House Majority Leader Tom DeLay (R-TX), as well as records related to DOJ’s investigation of Mr. DeLay and 14 individuals and

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entities. JA 94. The request followed Mr. DeLay’s announcement that DOJ had

informed him it had decided not to bring criminal charges against him related to

the well-publicized scandal involving lobbyist Jack Abramoff. Plaintiff-appellant

Citizens for Responsibility and Ethics in Washington (“CREW”) explained the

purpose of its request was to “shed light on DOJ’s conduct in conducting the

investigation of Mr. DeLay, and its apparent decision to close the investigation

without bringing charges against Mr. DeLay.” JA 97.1

The government moved for summary judgment, with the FBI claiming the

requested documents were subject to a categorical “privacy” exemption under

FOIA Exemptions 6 and 7(C), and were also properly withheld under Exemptions

2, 3, 7(A), 7(D), and 7(E). Notably, for purposes of this appeal, the FBI did not

invoke Exemption 5 as a ground for its withholding decision. CREW opposed

DOJ’s motion and filed a cross-motion for partial summary judgment.

In June 2012, the district court granted DOJ’s motion for summary judgment

– and denied CREW’s cross-motion – finding that the responsive records were

appropriately categorically withheld under Exemptions 6, 7(C), and 7(A), and that

responsive information was also appropriately withheld under FOIA Exemptions 2,

1 The details of DOJ’s investigation of Mr. DeLay are set forth in the Court’s prior decision in this case, CREW v. U.S. Dep’t of Justice, 746 F.3d 1082 (D.C. Cir. 2014).

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3, 7(D), and 7(E). See CREW v. DOJ, 870 F. Supp. 2d 70 (D.D.C. 2012).2 CREW

filed a timely appeal from the district court judgment.

On April 1, 2014, this Court reversed the district court’s decision with

respect to the agency’s categorical withholding determinations under Exemptions 6,

7(C), and 7(A), and further held that DOJ had presented insufficient evidence in its

attempt to justify withholding portions of the responsive records under Exemptions

3, 7(D), and 7(E). With respect to DOJ’s privacy claims, the Court held that any

cognizable privacy interests must be balanced against “a weighty public interest in

shining a light on the FBI’s investigation of major political corruption and the

DOJ’s ultimate decision not to prosecute a prominent member of the Congress for

any involvement he may have had.” 746 F.3d at 1092-93. The Court remanded

the case to the district court for further proceedings consistent with its opinion. Id.

at 1082.

As a result of this Court’s rejection of its attempt to categorically withhold

all responsive records under Exemptions 6 and 7(C) and 7(A), the FBI processed

328 pages of material that it claims were responsive to CREW’s FOIA request. In

November 2014, the Bureau released to CREW 124 pages (many of which

contained substantial redactions), and informed CREW that it was withholding 204

2 The Court addressed the applicability of Exemption 2, although CREW did not challenge the agency’s reliance upon that exemption.

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pages in their entirety. In support of these withholdings, the FBI invoked FOIA

Exemptions 3, 5, 6, 7(C), 7(D), and 7(E). JA 199.

In April 2015, DOJ for the second time moved for summary judgment,

asserting that it had properly withheld responsive information under Exemptions 3,

5, 6, 7(C), 7(D), and 7(E). CREW opposed the agency’s motion and cross-moved

for partial summary judgment, explaining that while it did not challenge DOJ’s

reliance upon Exemptions 3, 7(D), or 7(E), it did strongly dispute the agency’s

entitlement to withhold any information under Exemption 5, and also challenged

the propriety of the agency’s attempt to withhold certain information on privacy

grounds under Exemptions 6 and 7(C). JA 284.

With respect to Exemption 5, CREW noted that the FBI had not asserted any

claims under the exemption when it initially moved for summary judgment in

August 2011, despite the fact that DOJ had explicitly noted that this Court, in

Maydak v. U.S. Dep’t of Justice, 218 F.3d 760, 764-65 (D.C. Cir. 2000), made

clear that agencies “must assert all exemptions at the same time, in the original

district court proceedings.” CREW emphasized that DOJ was fully cognizant of

Maydak’s requirements when it first moved for summary judgment in August 2011;

although it relied upon “categorical” invocations of Exemptions 6, 7(C), and 7(A)

to withhold all information responsive to CREW’s FOIA request, it explicitly cited

Maydak as the basis for its additional invocations of Exemptions 3, 7(D), and 7(E)

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to withhold unspecified portions of the material.3 As the agency explained in its

first summary judgment motion in 2011, its

assertions of Exemptions 3, 7(D), and 7(E) . . . reflect[] DOJ’s position that it would only need to rely on Exemptions 3, 7(D), and 7(E) if the court rejected the applicability of categorical Exemptions 6, 7(C), and 7(A). DOJ asserts Exemptions 3, 7(D), and 7(E) here, in light of Maydak, 218 F.3d 760, but DOJ would rely on these additional exemptions to withhold requested information only if the other exemptions were rejected.

JA 192 (emphasis in original). Indeed, David Hardy, the FBI’s declarant, was

unequivocal in his explanation in 2011 that, “[i]n light of the D.C. Circuit’s ruling

in Maydak v. U.S. Department of Justice, 218 F.3d 760 (D.C. Cir. 2000), FOIA

Exemptions (b)(2), (b)(3), (b)(6), (b)(7)(C), (b)(7)(D) and (b)(7)(E) are also being

asserted [in addition to Exemption 7(A)] . . . . ” JA 82. At no time during the 2011

proceedings did DOJ or Mr. Hardy suggest that the FBI was asserting claims under

Exemption 5.

CREW argued that DOJ’s belated attempt to invoke Exemption 5 for the

first time, more than three-and-a-half years after it comprehensively articulated its

basis for withholding the responsive records, constituted a blatant violation of the

Maydak rule. CREW noted that the parties fully briefed their dispositive motions

in 2011, the district court ruled on DOJ’s exemption claims in 2012, and this Court

3 In addition to its invocations of Exemptions 3, 7(D), and 7(E), DOJ initially relied upon Exemption 2 to withhold some portions of the responsive records, but CREW did not challenge DOJ’s reliance upon that exemption. JA 140, n.12.

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considered – and rejected – the validity of the agency’s legal position in 2014. As

such, CREW asserted that the FBI had waived any claims under Exemption 5.

Turning to the propriety of the agency’s attempt to withhold certain

information on privacy grounds under Exemptions 6 and 7(C), CREW noted that

the FBI identified five distinct categories of information withheld under those

exemptions: “names and identifying information of (1) third parties who provided

information to the FBI; (2) FBI Special Agents and support personnel; (3) third

parties mentioned in investigative records; (4) third parties of investigative interest

to the FBI; and (5) non-FBI and federal government personnel.” JA 215. CREW

did not challenge the withholding of information concerning “FBI Special Agents

and support personnel” or “non-FBI and federal government personnel,” but

argued that DOJ had failed to establish that all of the information it sought to

withhold concerning other third parties was properly exempt from disclosure.

In support of its argument, CREW noted that numerous individuals had been

publicly identified in DOJ press releases as having been charged, convicted or

otherwise implicated in the Department’s “wide-ranging public corruption

investigation.” See, e.g., JA 146-164. CREW further noted that more than 30

individuals publicly testified in the criminal trials DOJ identified as arising from its

“public corruption investigation.” See JA 167-169. CREW also pointed to this

Court’s recognition, in its 2014 opinion in this case, that “two of those convicted

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[as a result of the investigation], Tony Rudy and Michael Scanlon, once served as

senior aides to Tom DeLay,” 746 F.3d at 1087.4 As such, CREW argued that

many individuals had already been publicly associated with DOJ’s investigation, as

a result of the agency’s press releases and open court proceedings. Under such

circumstances, CREW argued, the disclosure of those individuals’ names, to the

extent they appear in the withheld material, could not be expected, as DOJ

suggested, to “lead to great embarrassment and reputational harm for these

individuals” by “connecting” them to, or “associating” them with, the Abramoff

investigation.

In a memorandum opinion issued on March 30, 2016, the district court

granted DOJ’s motion for summary judgment and denied CREW’s cross-motion

for partial summary judgment. The district court acknowledged that “the FBI did

not attempt to justify non-disclosure of any of its responsive records by asserting

Exemption 5” in the initial summary judgment proceedings in 2011. JA 305. The

court noted that “[b]ecause it was not even hinted at in the first round of summary

judgment, the issue of whether Exemption 5 is applicable to the FBI’s material was

not one plaintiff had the chance to contest or this Court had the opportunity to

consider and therefore was not asserted in the original district court proceedings.”

JA 305-306. Finally, the district court emphasized that DOJ offered “no

4 The Court also noted “Fraser Verrusio’s . . . February 10, 2011 conviction on charges stemm[ed] from the Abramoff investigation.” Id. at 1097 n.6.

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explanation at all as to its failure to assert Exemption 5 in regards to the FBI’s

records in the original proceedings.” JA 306-307 (emphasis in original).

Nonetheless, the court held that “precluding defendant from asserting Exemption 5

as to the material at issue would not advance the policy goals supporting the

Maydak rule,” and found that DOJ had properly withheld the disputed material. JA

308. The district court informed the agency that it “should understand it prevailed

on this issue by the skin of its teeth.” Id., n.2.5

The district court also ruled in DOJ’s favor with respect to Exemptions 6 and

7(C). First, the court discounted the fact that numerous individuals had been

publicly associated with the Abramoff corruption investigation, stating that CREW

did not “point to any information in the public domain confirming the individuals

whose names are redacted have been publicly associated specifically with the

investigation into Mr. DeLay or into the precise conduct or events discussed” in

the withheld records. JA 313. As such, the court found that there were

“substantial privacy interests at stake.” Id. The district court next concluded that

CREW failed to show that disclosure would “serve the public interest in shedding

5 The court admonished DOJ, stating that it was “particularly displeased by defendant’s misrepresentation in its brief in support of its second Motion for Summary Judgment that the FBI had withheld material pursuant to Exemption 5 in the first round of summary judgment, and defendant’s failure to explain or take responsibility for the mishap here.” Id. The court further stated that “[t]he Department would do well to take affirmative steps to prevent this situation from occurring again.” Id. (citation omitted).

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light on how [DOJ] conducted the investigation, the level of diligence and

resources it put forth, and the amount of evidence it surmounted.” JA 314. The

court thus held that the public interest is “weak and does not outweigh the third

parties’ substantial interest in nondisclosure.” Id.

CREW filed a timely notice of appeal on May 26, 2016, seeking this Court’s

de novo review of the district court’s judgment in favor of DOJ.

SUMMARY OF THE ARGUMENT

The district court’s willingness to excuse DOJ’s undisputed failure to invoke

Exemption 5 in the initial proceeding was a clear violation of this Court’s

longstanding requirement that all exemption claims must be raised at the outset,

lest they be waived. While the district court acknowledged that the agency made

no effort to explain or justify its belated attempt to rely upon Exemption 5, it

nonetheless held that the “policy” considerations underlying this Court’s waiver

rule would not be served by enforcing it in this case. The court stated that because

CREW did “not dispute that Exemption 5 shields the material at issue from

disclosure,” there would be no “delay” resulting from DOJ’s violation. That

determination turns the waiver rule on its head, requiring a FOIA requester to

address the merits of a belated exemption claim years after initially litigating all

agency arguments, lest it be deemed to have “conceded” the issue, despite this

Court’s clear command that new claims may not be raised for the first time on

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remand. Particularly under the facts of this case, where DOJ explicitly

acknowledged Maydak’s requirements when it first moved for summary judgment

in 2011, the district court clearly erred when it accepted DOJ’s belated claim.

Despite this Court’s previous directive that DOJ must make a particularized

showing of its entitlement to withhold responsive records on remand, the district

court endorsed the agency’s withholding of all information concerning third parties

on privacy grounds under Exemptions 6 and 7(C). In so doing, the court ignored

the fact that numerous individuals have already been identified by DOJ as having

been implicated in the large-scale public corruption investigation underlying

CREW’s FOIA request; indeed, several individuals were prosecuted and convicted.

The court failed to take that reality into account and did not even attempt to explain

why the interests of such third parties in not being “associated” with a criminal

investigation were not greatly diminished by the existing public knowledge of their

involvement in the matter. The district court compounded that error by failing to

acknowledge the substantial public interest in the FBI’s investigation of Mr.

DeLay, despite this Court’s previous clear finding on that point.

STANDARD OF REVIEW

This Court reviews district court grants of summary judgment de novo.

Multi AG Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1227 (D.C. Cir. 2008).

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ARGUMENT

I. The District Court Erred When it Permitted DOJ to Rely Upon Exemption 5 to Withhold Responsive Information

The district court ignored this Court’s longstanding and unambiguous

precedent when it held that DOJ was entitled to withhold material under FOIA

Exemption 5. The court acknowledged that, “[i]n the initial round of summary

judgment” in 2011, “the FBI did not attempt to justify non-disclosure of any of its

responsive records by asserting Exemption 5.” JA 305. But the district court

inexplicably excused the agency’s omission on the ground that “precluding [DOJ]

from asserting Exemption 5 . . . would not advance the policy goals supporting the

Maydak rule.” JA 308.

For more than thirty-five years, this Court has consistently and

unequivocally held that an agency may not invoke new exemption claims

subsequent to articulating its initial reasons for withholding requested records in

the district court. As then-Judge Scalia explained in 1986, “[i]t is common ground

that the government ordinarily must raise all its claims of exemption in the original

proceedings in district court, and may not thereafter assert new claims of

exemption, either on appeal or on remand following appeal.” Wash. Post Co. v.

U.S. Dep’t of Health & Human Serv., 795 F.2d 205, 208 (D.C. Cir. 1986) (Scalia,

J.) (emphasis added; footnote and citation omitted); see also Ryan v. Dep’t of

Justice, 617 F.2d 781, 791-92 (D.C. Cir. 1980) (holding that “the Government may

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not raise [a new exemption claim] upon remand to the district court,” noting “[t]he

danger of permitting the Government to raise its FOIA exemption claims one at a

time, at different stages of a district court proceeding”).

The Court’s strongest admonition to the government on this point came in

Maydak v. U.S. Dep’t of Justice, 218 F.3d 760, 764-65 (D.C. Cir. 2000), where it

reiterated that “[w]e have plainly and repeatedly told the government that, as a

general rule, it must assert all exemptions at the same time, in the original district

court proceedings.” The Court noted that this longstanding requirement is

grounded in two distinct and fundamental interests: “As we have observed in the

past, the delay caused by permitting the government to raise its FOIA exemption

claims one at a time interferes both with the statutory goals of ‘efficient, prompt,

and full disclosure of information,’ and with ‘interests of judicial finality and

economy.’” Id. at 765 (emphasis in original; citations omitted). The result of the

holding in Maydak was straightforward: “[b]ecause the DOJ failed to raise the

other exemptions upon which it wished to rely in the original district court

proceedings,” the Court “order[ed] the release of all requested documents to the

appellant.” Id. at 769; see also August v. FBI, 328 F.3d 697, 699 (D.C. Cir. 2003)

(Court in Maydak “denied the Government the opportunity to raise additional

FOIA exemptions and ordered wholesale disclosure of the requested materials”).

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In this case, DOJ was fully cognizant of Maydak’s requirements when it first

moved for summary judgment in August 2011. Although it relied upon

“categorical” invocations of Exemptions 6, 7(C), and 7(A) to withhold all

information responsive to CREW’s FOIA request, it explicitly cited Maydak as the

basis for its additional invocations of Exemptions 3, 7(D), and 7(E) to withhold

unspecified portions of the material. As the agency explained, its

assertions of Exemptions 3, 7(D), and 7(E) . . . reflect[] DOJ’s position that it would only need to rely on Exemptions 3, 7(D), and 7(E) if the court rejected the applicability of categorical Exemptions 6, 7(C), and 7(A). DOJ asserts Exemptions 3, 7(D), and 7(E) here, in light of Maydak, 218 F.3d 760, but DOJ would rely on these additional exemptions to withhold requested information only if the other exemptions were rejected.

JA 192 (emphasis in original; citation omitted). Indeed, David Hardy, the FBI’s

declarant, was unequivocal in his explanation that, “[i]n light of the D.C. Circuit’s

ruling in Maydak v. U.S. Department of Justice, 218 F.3d 760 (D.C. Cir. 2000),

FOIA Exemptions (b)(2), (b)(3), (b)(6), (b)(7)(C), (b)(7)(D) and (b)(7)(E) are also

being asserted [in addition to Exemption 7(A)] . . . . ” JA 82. At no time did DOJ

or Mr. Hardy suggest that the FBI was asserting claims under Exemption 5.

DOJ’s belated attempt to invoke Exemption 5 for the first time, more than

three-and-a-half years after it comprehensively articulated its basis for withholding

the responsive records, constituted a blatant violation of the Maydak rule. The

parties fully briefed their dispositive motions in 2011, the district court ruled on

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DOJ’s exemption claims in 2012, and this Court considered – and rejected – the

validity of the agency’s legal position in 2014.6 DOJ thus attempted to pursue an

approach explicitly disapproved in Maydak, where this Court firmly rejected the

suggestion that “after . . . the courts conclude that Exemption 7(A) is inapplicable,

then the government should be allowed to start back at the beginning in assessing

the applicability of and satisfying its burden under other exemptions.” 218 F.3d at

766. As a result of DOJ’s failure to assert any claims under Exemption 5 when it

first articulated its basis for withholding the requested records, any such claims

were waived. See, e.g., Stonehill v. IRS, 558 F.3d 534, 540 (D.C. Cir. 2009) (“In

the FOIA context, the waiver rule seeks to eliminate further litigation about newly

6 DOJ, in its second summary judgment motion, mischaracterized the procedural history of the case when it asserted that, in 2011,

FBI explained that it had categorically withheld the responsive documents pursuant to Exemptions 6 and 7(C) . . . FBI also explained that it withheld all of the responsive documents under Exemption 7(A) . . . Finally, FBI explained that responsive materials were also being withheld pursuant to FOIA Exemptions 2, 3, 5, 7(D) and 7(E).

JA 201. DOJ further stated that the district court found that “responsive information was . . . appropriately withheld under FOIA Exemption[] . . . 5.” Id. The record, however, is clear that the FBI at no time asserted any claims under Exemption 5, and neither the district court nor this Court considered the validity of any such claims. The district court properly admonished the agency, noting that it was “particularly displeased by defendant’s misrepresentation in its brief in support of its second Motion for Summary Judgment.” JA 308, n.2.

14 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 23 of 59

asserted FOIA exemptions, once an exemption has been asserted and the court has

rejected it.” (citing Maydak, 218 F.3d at 764)).

The district court properly found that, “[b]ecause it was not even hinted at in

the first round of summary judgment, the issue of whether Exemption 5 is

applicable to the FBI’s material was not one plaintiff had the chance to contest or

this Court had the opportunity to consider and therefore was not asserted in the

original district court proceedings.” JA 306. The court went on to state that

[t]he inquiry does not end here, however, because our Circuit has avoided a “rigid ‘press it at the threshold, or lose it for all times’ approach to . . . agenc(ies’) FOIA exemption claims” as “the harms of disclosure may in some cases outweigh its benefits.”

Id., quoting August, 328 F.3d at 699. The court then identified three circumstances

where “an agency may be permitted to assert FOIA exemptions it did not raise” in

the initial district court proceedings:

where (1) it was “forced to invoke an exemption for the first time on appeal because of a substantial change in the factual context of the case or because of an interim development in applicable legal doctrine;” (2) “where, through pure mistake, the Government attorneys had not invoked the correct exemption in the district court” as to high value material that very likely “was intended to be protected by one of the nine enumerated exemptions;” and (3) where strict enforcement of the waiver rule would not advance the policy interests underlying it.

JA 306 (citations omitted).

Assessing the potential applicability of the identified circumstances, the

district court expressly held that “the first two exceptions are inapplicable” in this

15 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 24 of 59

case. JA 307. The court thus focused upon the third circumstance, which DOJ

relied upon: whether forbidding the FBI to rely upon Exemption 5 “would not

support the policy considerations supporting the waiver rule.” Id. Citing this

Court’s decision in August, the district court recognized that “the interest in

judicial finality and economy, which has ‘special force in the FOIA context,

because the statutory goals – efficient, prompt, and full disclosure of information –

can be frustrated by agency actions that operate to delay the ultimate resolution of

the disclosure request.’” Id. (emphasis in original) (quoting August, 328 F.3d at

699). But the court quickly dispensed with any concern over the strong policy

favoring “prompt” conduct of FOIA cases. While acknowledging that “permitting

a defendant to raise a new claim of exemption for this first time at this late stage

could result in dragging a plaintiff back to the starting line,” the district court oddly

concluded that because CREW “does not dispute that Exemption 5 shields the

material at issue from disclosure . . . there is no occasion for delaying the process

with presentation and consideration of fresh arguments about the applicability of

the exemption.” Id.7

7 Earlier in its opinion, the district court stated that CREW “does not respond to defendant’s argument that the material falls within the ambit of Exemption 5, and the Court therefore treats that argument as conceded.” JA 304. The court cited Wilkins v. Jackson, 750 F. Supp. 2d 160, 162 (D.D.C. 2010), where the pro se plaintiff “failed to respond to any of the arguments for dismissal” raised by the defendant. Here, in contrast, CREW responded to DOJ’s argument and asserted that the agency was foreclosed from pursuing it.

16 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 25 of 59

Far from “not disput[ing]” the propriety of the FBI’s reliance upon

Exemption 5, CREW forcefully argued – and clearly demonstrated – that the

agency had waived its ability to withhold information on that ground. To the

extent that the district court believed CREW was somehow obligated to address the

merits of the FBI’s belated Exemption 5 claim, the obvious effect of a waiver is

that a court “do[es] not reach the merits” of the waiving party’s claims because the

party is “preclude[d] . . . from raising them.” Charter Oil Co. v. Am. Emp’rs’ Ins.

Co., 69 F.3d 1160, 1171 (D.C. Cir. 1995); see also Oglesby v. U.S. Dep’t of the

Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996) (where party “did not raise . . .

argument in a timely manner, we do not address it on the merits”). The district

court’s rationale defies logic and would render this Court’s longstanding waiver

rule a dead letter. The policy supporting “prompt” adjudication of FOIA claims

would be ill-served by requiring a requester like CREW – after litigating all

exemptions claims initially raised by the agency in the first district court

proceeding, appealing, and successfully litigating the issues again in this Court – to

address the merits of a belatedly raised exemption lest it be deemed to “concede”

the issue. See, e.g., Stonehill, 558 F.3d at 540 (“In the FOIA context, the waiver

rule seeks to eliminate further litigation about newly asserted FOIA exemptions.”

(emphasis added)). Such a formulation would turn the waiver rule on its head,

permitting agencies to raise exemption claims for the first time on remand after

17 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 26 of 59

losing in this Court, while finding the blind-sided requester to have “waived” its

objections when it seeks to rely upon Maydak’s clear command.

Contrary to the district court’s assertion that “there is no occasion for

delaying the process,” CREW submits that this case presents a textbook example

of the result this Court has long sought to prevent. The propriety of the FBI’s

withholding claims were fully litigated in the district court in 2011, without the

slightest suggestion that the Bureau sought to rely upon Exemption 5. The court

issued a ruling in 2012 on all the claims the FBI raised, and the propriety of those

claims was addressed by this Court in 2014. It is thus hard to understand the basis

for the district court’s assertion that allowing the FBI to litigate its entitlement to

belatedly rely on Exemption 5 is not “delaying the process.”

In addition to its mystifying conclusion that the FBI’s belated invocation of

Exemption 5 has not delayed the litigation of a FOIA request submitted to the

Bureau six years ago, the district court also found that the “policy goals”

underlying the Maydak rule do not apply because DOJ’s “behavior is not

consistent with gamesmanship.” JA 308. In support of that conclusion, the court

noted that another DOJ component – the Criminal Division (“CRM”) – had argued

in 2011 that some of the records it maintained that were responsive to CREW’s

identical FOIA request were subject to withholding under Exemption 5. Id.

18 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 27 of 59

But CREW did not challenge CRM’s withholdings, and, given the FBI’s

failure to invoke Exemption 5 with respect to its own records, the applicability of

the exemption was never litigated during the course of the initial district court

proceedings nor before this Court on appeal. Indeed, the district court noted in

some detail earlier in its opinion:

The Department employed a decentralized process in which “the decision to release or withhold information (was) left to the component where those records originated.” The CRM and the FBI each conducted searches of their respective records and separately provided individualized reasons for withholding responsive records in the component’s possession. In the initial round of summary judgment, defendant made crystal clear that it asserted Exemption 5 only as a basis for withholding the CRM’s records. Nowhere did defendant claim the FBI had also properly withheld records pursuant to Exemption 5, nor could it, as the FBI did not attempt to justify non- disclosure of any of its responsive records by asserting Exemption 5. Moreover, defendant’s reliance on Exemption 5 in the initial round extended only to the CRM’s prosecution memoranda related to the investigation. At that time, the FBI’s affiant clearly stated he had “been advised that the (FBI’s) case files do not contain prosecution memoranda, as it is the policy of DOJ not to provide these memoranda to FBI (Special Agents) due to their work-product nature.” After plaintiff disclaimed any issues as to the CRM’s response, the parties’ only disputes were to records in the FBI’s possession. Because it was not even hinted at in the first round of summary judgment, the issue of whether Exemption 5 is applicable to the FBI’s material was not one plaintiff had the chance to contest or this Court had the opportunity to consider and therefore was not asserted in the original district court proceedings.

19 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 28 of 59

JA 305-306 (citations omitted).8 While the district court observed that the FBI’s

belated “assertion of Exemption 5 as to the material at issue was most certainly

unexpected given the history of the case” (recounted above), it nonetheless cited

the arguments made by CRM – but not the FBI – and concluded that DOJ’s

attempt “to withhold similar material for the same reasons does not appear to be

the intentional sandbagging warned against in Maydak . . . .” JA 308.

The district court appears to have derived its “gamesmanship” and

“sandbagging” rationale from this Court’s opinion in August. See JA 307 (policy

interest “in precluding the government from ‘play(ing) cat and mouse by

withholding its most powerful cannon until after the District Court has decided the

case and then springing it on surprised opponents and the judge.’” (quoting August,

328 F.3d at 699)). Reliance upon August, however, is misplaced.

The circumstances in August, “differ[ed] from Maydak in several important

respects,” 328 F.3d at 700, and those differences are instructive here. The Court

noted that, “[f]irst, . . . the Government seeks only the opportunity to withhold

‘sensitive, personal private information’ pertaining to third parties involved in its

investigation of August, and it has provided clear evidence that wholesale

disclosure of the requested information would endanger such persons.” Id.

8 As this Court also noted, “CREW’s request . . . sought[, inter alia,] prosecution memoranda but the Hardy Declaration stated that no such memoranda were found in the FBI’s case file.” 746 F.3d at 1090 n.1.

20 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 29 of 59

“Second, the Government ha[d] admitted that it made a mistake in failing to invoke

FOIA Exemptions 7(C), 7(D), and 7(F) in the district court . . . .” Id. at 701. The

Court noted that “at the time this litigation commenced, Maydak had not yet been

decided, and under then governing law, the Government might quite plausibly have

believed that it could rely solely on Exemption 7(A) without reviewing its

voluminous investigative file on August to determine whether other exemptions

might apply.” Id. It thus “seem[ed] quite likely that the Government’s failure to

invoke [other] Exemptions . . . stemmed from its ultimately mistaken but

reasonable belief that it would have an opportunity to raise these exemptions if the

law-enforcement proceedings against August ended before his FOIA case.” Id.

In the context of this case, the Court’s final consideration in August is

critical:

Finally, remand [to allow invocation of the other exemptions] is particularly appropriate in this case because “the government has taken affirmative steps to abide by Maydak, to guard against recurrence of this problem.” Reiterating this point at oral argument, counsel explained that the government has changed its policy for the review of FOIA requests to ensure that all applicable exemptions are raised at the outset.

To sum up, because the Government’s failure to raise all FOIA exemptions at the outset resulted from human error, because wholesale disclosure would pose a significant risk to the safety and privacy of third parties, and because the Government has taken steps to ensure that it does not make the same mistake again, we see this case as inappropriate for the rigid “press it at the threshold, or lose it for all times” approach . . . .

21 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 30 of 59

Id. at 702 (citation omitted). Here, in contrast, there is no suggestion of

“significant risk to the safety and privacy of third parties,”9 there is no claim of

“human error” (as Maydak has long been the rule and the FBI explicitly

acknowledged its requirements in 2011),10 and the agency dishonored the

commitment it made to this Court in August that it would “not make the same

mistake again.”

It is thus clear that this case is distinguishable from August and similar to

Maydak, where “DOJ was not demonstrably unable to prove its assertion of other

FOIA exemptions [earlier]; it simply chose not to try.” 218 F.3d at 769. Under the

circumstances of this case – where the FBI itself recognized the requirements of

Maydak when it raised multiple exemption claims in 2011 – it is clear that the

agency was prohibited from “assert[ing] new claims of exemption . . . on remand

following appeal.” Washington Post, 795 F.2d at 208; see also Ryan, 617 F.2d at

791-92 (same).

9 The Court noted that, “[t]he law does not require that third parties pay for the Government’s mistakes.” Id. at 701 (citation omitted). The exemption claim at issue in this case seeks to protect solely governmental interests in enjoying a privilege, so similar considerations are absent here.

10 The district court expressly noted that “Defendant’s briefing contains . . . no mea culpa or acknowledgement [of] mistake, and indeed no explanation at all as to its failure to assert Exemption 5 in regards to the FBI’s records in the original proceedings.” JA 306-307 (emphasis in original). The court thus held that the “mistake” exception to Maydak was inapplicable. Id.

22 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 31 of 59

The district court clearly erred when it overlooked DOJ’s blatant violation of

this Court’s longstanding requirements, and its judgment in favor of the agency

should be reversed.

II. The District Court Erred When it Approved DOJ’s Withholding of Disputed Information Under Exemptions 6 and 7(C)

Exemption 6 applies to “personnel or medical files and similar files the

disclosure of which would constitute a clearly unwarranted invasion of personal

privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C) applies to “records or information

compiled for law enforcement purposes” when disclosure “could reasonably be

expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C.

§ 552(b)(7)(C).11 Although the privacy language in Exemption 7(C) is broader

than that in Exemption 6, the courts employ a similar analysis to decide whether

information may be withheld on either ground. See, e.g., ACLU v. U.S. Dep’t of

Justice, 655 F.3d 1, 6 (D.C. Cir. 2011).12 Under both exemptions, the court must

first assess whether the third-party has more than a de minimis privacy interest in

the requested material. Id. at 12. If such an interest exists, the court must then

determine whether the third-party’s privacy interest is outweighed by the public

11 CREW has acknowledged that the disputed information was “compiled for law enforcement purposes” and thus satisfies the Exemption 7(C) threshold.

12 Citing ACLU, the district court “focuse[d] its analysis on whether the records were properly withheld under Exemption 7(C).” JA 310.

23 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 32 of 59

interest in disclosure. Id. at 6. If this balancing of interests tips in favor of the

public interest, the information may not be withheld.

This Court has long held that “[t]he Exemption 7(C) balancing test must be

applied to the specific facts of each case.” Stern v. FBI, 737 F.2d 84, 91 (D.C. Cir.

1984). “Because the myriad of considerations involved in the Exemption 7(C)

balance defy rigid compartmentalization, per se rules of nondisclosure based upon

the type of document requested, the type of individual involved, or the type of

activity inquired into, are generally disfavored.” Id. (citation omitted); see also

Keys v. U.S. Dep’t of Justice, 830 F.2d 337, 347 (D.C. Cir. 1987) (“[a]

compartmentalization is ‘rigid’ within the meaning of Stern . . . to the extent [inter

alia] that it ignores factors that are material”). Consistent with the requirement of

specificity, this Court in 2014 directed that, on remand, DOJ “must attempt to

make a more particularized showing as to what documents or portions thereof are

exempt” to enable the district court to “weigh what information may be withheld

under Exemption 7(C) and whether any information is reasonably segregable and

may be disclosed.” 746 F.3d at 1096.

Under the “specific facts” of this case – where the identities of numerous

individuals have already been disclosed and this Court has already held that there

is a substantial public interest in the withheld material – DOJ failed to establish its

entitlement to broadly rely upon FOIA’s privacy exemptions to withhold all

24 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 33 of 59

information relating to third-parties named in the FBI’s investigative files

responsive to CREW’s FOIA request.

A. Many Individuals Whose Names Likely Appear in the Withheld Material Have Only a Minimal Privacy Interest at Stake

While it is true that in many cases “individuals have an obvious privacy

interest cognizable under Exemption 7(C) in keeping secret the fact that they were

subjects of a law enforcement investigation,” Nation Magazine v. U.S. Customs

Serv., 71 F.3d 885, 894 (D.C. Cir. 1995), there are no privacy issues at stake when,

as in this case, the “secret” is already known, see, e.g., Dep’t of Justice v.

Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763 n.15 (1989) (“[T]he

interests in privacy fade when the information involved already appears on the

public record.” (citation and emphasis omitted)); Hollis v. U.S. Dep’t of Army, 856

F.2d 1541, 1545 (D.C. Cir. 1988) (“when a release consists merely of information

to which the general public already has access” privacy interests are not implicated

(footnotes omitted)).

DOJ asserted below that “[s]uspects [and] witnesses . . . have substantial

privacy interests that are implicated by the public release of law enforcement

investigative materials,” and argued that “[d]isclosure of these materials can lead

to great embarrassment and reputational harm for these individuals.” JA 217

(citations omitted). The agency cited Computer Professionals for Social

Responsibility v. U.S. Secret Service, 72 F.3d 897, 904 (D.C. Cir. 1996), in support

25 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 34 of 59

of the proposition that individuals have a “strong interest . . . in not being

associated unwarrantedly with alleged criminal activity.” JA 218 (internal

quotation marks omitted). But in that case, the Court made clear that the

individual privacy interest at issue was “in not being connected in any way with a

criminal investigation.” 72 F.3d at 904 (emphasis added). It is thus clear that

individuals whose names appear in investigative files – and whose privacy interests

are protected – are those who have not already been associated with, or connected

to, the criminal investigation at issue.

CREW emphasized below that numerous individuals have been publicly

identified in DOJ press releases as having been charged, convicted, or otherwise

implicated in its “wide-ranging public corruption investigation.” See, e.g., JA 147

(Todd Boulanger, James Hirni, Trevor Blackann); JA 150 (Horace Cooper, Neil

Volz); JA 152 (Ann Copland); JA 154 (Glenn Marshall); JA 157 (Kevin Ring);

JA 160 (David Safavian); JA 162 (Italia Federici, J. Steven Griles, Jared

Carpenter); JA 165-166 (Congressman Robert W. Ney, Roger G. Stillwell).

Those public pronouncements strongly impact the privacy interests at issue; as the

Court has observed,

by routinely issuing press releases that name the individuals that it has indicted, and then naming them again when they plead guilty or are convicted, the Justice Department has itself made the process [of identifying individuals charged with crimes] infinitely easier. If someone wants to know whether his neighbor or potential employee has been indicted for, convicted of, or pled guilty to a federal offense,

26 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 35 of 59

he may well find out by simply entering a Google search for that person’s name.

ACLU, 655 F.3d at 10 (footnotes omitted).

In addition, more than 30 individuals publicly testified in the criminal trials

DOJ has identified as arising from its “public corruption investigation.” JA 167-

169. And this Court noted, in its first opinion in this case, that the FBI “opened a

wide-ranging public corruption investigation into the activities of former lobbyist

Jack Abramoff,” and that “[t]wo of those convicted, Tony Rudy and Michael

Scanlon, once served as senior aides to Tom DeLay,” 746 F.3d at 1087.13 The

Court also noted “Fraser Verrusio’s . . . February 10, 2011 conviction on charges

stemm[ed] from the Abramoff investigation.” Id. at 1097 n.6.

It is thus clear that many individuals have already been publicly associated

with DOJ’s investigation, as a result of the agency’s press releases and open court

proceedings. Under such circumstances, the disclosure of those individuals’ names,

to the extent they appear in the withheld material, cannot be expected, as DOJ

suggests, to “lead to great embarrassment and reputational harm for these

13 As senior aides to Mr. DeLay, who were convicted as a result of acts associated with their official duties, Mr. Rudy and Mr. Scanlon are particularly likely to be named in FBI records concerning Mr. DeLay. Indeed, the FBI acknowledged that “the investigation attempted to determine if several Tom DeLay associates, after leaving positions on Capitol Hill and becoming lobbyists, conspired with Tom DeLay to commit honest services fraud . . . .” JA 248.

27 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 36 of 59

individuals” by “connecting” them to, or “associating” them with, the Abramoff

investigation. Those connections and associations have already been made public.

Despite this Court’s direction that “[t]he Exemption 7(C) balancing test must

be applied to the specific facts of each case,” Stern, 737 F.2d at 91, the district

court gave short shrift to the unique circumstances here, where numerous

individuals have been identified in connection with the underlying investigation,

and several were prosecuted and convicted. The court quickly dispensed with

those key facts:

Plaintiff has not met its burden of precision here. Plaintiff alleges only that certain individuals have been publicly associated with the Department’s large-scale public corruption investigation. Plaintiff does not point to any information in the public domain confirming the individuals whose names are redacted have been publicly associated specifically with the investigation into Mr. DeLay or into the precise conduct or events discussed on the pages with redacted names and identifying information.

JA 313.

While the district court did not expressly address the issue, it appears to have

adopted DOJ’s argument that third parties who have already been publicly

associated with its “wide-ranging public corruption investigation” nonetheless

have a substantial “privacy interest in information about themselves that might be

connected to the specific investigation of Mr. DeLay.” Dkt. No. 34* at 6 (emphasis

added; citation omitted). The agency failed to explain – and the district court

* Inadvertently omitted from Joint Appendix.

28 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 37 of 59

likewise did not discuss – why individuals who have been indicted and convicted

in the course of the Abramoff corruption investigation would somehow be

adversely affected by an association with “the specific investigation of Mr. DeLay,”

which was just a “piece” of the larger investigation. See JA 296 (redacted FBI

record describing the DeLay inquiry as a “piece of the [corruption] investigation”).

Where an agency seeks to withhold information such as that at issue here,

“the magnitude of [an individual’s] privacy interest turns on whether disclosure

might result in unwarranted association with criminal activity or reputational harm.”

Nation Magazine, 71 F.3d at 894. However, as this Court has held, “when a

person has already been publicly charged and convicted of a federal offense,

disclosure of that person’s name . . . will [not] materially increase the number of

his or her possible future friends and associates who will be exposed to the

information [concerning criminal activity],” thus eliminating any reputational harm

that might otherwise be at issue. ACLU, 655 F.3d at 10-11 (footnote omitted); see

also id. at 7 (“[D]isclosure of convictions and public pleas is at the lower end of

the privacy spectrum.”); Keys, 830 F.2d at 348 (“Once the government identified

[an individual] as the subject of an investigation, it is hard to see how the general

background information about him [contained in another individual’s file] could

have measurably invaded his privacy.”).

29 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 38 of 59

Ultimately, both DOJ and the district court have failed to explain why the

DeLay “piece” of the Abramoff corruption investigation was so unique and

discrete that an association with that particular aspect of the investigation would

somehow result in a reputational harm greater than, or different from, that flowing

from the known facts that numerous individuals were actually indicted, convicted

and imprisoned as a result of the investigation. Indeed, the Bureau itself directly

tied the records at issue here to the “large public corruption investigation [that] has

yielded a total of 20 guilty pleas or trial convictions in connection with the

activities of Jack Abramoff and his associates.” JA 73 (footnote citing DOJ press

release omitted). As the FBI’s declarant, Mr. Hardy, explained, “[d]uring the

course of the investigation, the FBI . . . created an interwoven tapestry of

connections among those individuals who have either pled guilty or have been

convicted, as well as many other individuals . . . who have been persons of

investigative interest.” Id. In light of that acknowledgement concerning the

“interwoven tapestry of connections” between “individuals who have either pled

guilty or have been convicted” and Mr. DeLay (a now-acknowledged “person[] of

investigative interest”), it was impossible to discern the Bureau’s basis for

concealing those individuals’ names, and the district court did not even attempt to

address the issue.

30 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 39 of 59

While the district court’s rationale for its determination is not entirely clear,

CREW notes that the court’s scant citation of authority suggests that it employed

standards inappropriate to the circumstances of this case. Thus, the court cited

Judicial Watch, Inc. v. FBI, No. 00-cv-745 (TFH), 2001 U.S. Dist. LEXIS 25732,

at *20 (D.D.C. Apr. 20, 2001), in support of the proposition that, “[t]he fact that

the requester might be able to figure out the individuals’ identities through other

means . . . does not diminish their privacy interests.” JA 312 (internal quotation

marks omitted). The court in Judicial Watch cited Weisberg v. U.S. Department of

Justice, 745 F.2d 1476 (D.C. Cir. 1984), where this Court merely observed that,

while the FOIA requester “claim[ed] that he kn[ew] the identities of two persons

who gave information to the FBI,” the “fact that [he] has apparently been able to

piece together the manner in which the identities of these alleged informants fit in

with the FBI’s . . . investigation in no way undermines the privacy interests of

these individuals in avoiding harassment and annoyance that could result should

the FBI confirm . . . the presence of their names” in the withheld records.

Weisberg, 745 F.2d at 1491 (emphasis in original). The circumstances present here

are a far cry from “figur[ing] out” or “piec[ing] together” the withheld identities.

Rather, CREW has simply and logically argued that the agency cannot conceal the

identities of individuals who have already been formally identified by DOJ itself as

being associated with the underlying investigation.

31 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 40 of 59

The district court also cited Schrecker v. Department of Justice, 349 F.3d

657, 666 (D.C. Cir. 2003), for the proposition that “information in law enforcement

records identifying private individuals is exempt from disclosure unless release is

necessary to confirm or refute compelling evidence that the agency is engaged in

illegal activity.” JA 313 (internal quotation marks omitted). But that standard is

not applicable here; as this Court already made clear in its earlier opinion, “CREW

alleges no impropriety on the part of the FBI or the DOJ; it has nonetheless

established a sufficient reason for disclosure independent of any impropriety[.] . . .

Whether government impropriety might be exposed in the process is beside the

point.” 746 F.3d at 1095. While the weight the district court gave to the

inapplicable authority it cited is impossible to discern, it clearly erred in its generic

conclusion that all third parties named in the responsive records have a cognizable

and “substantial interest in nondisclosure.” JA 314.

B. As This Court Found, There is a Substantial Public Interest in the FBI Records at Issue in This Case

When conducting the required balancing of interests under Exemptions 6

and 7(C), the district court had no need to linger long over assessing the weight to

be given the public interest in disclosure of the withheld information. As this

Court already found, any cognizable privacy interests must be balanced against “a

weighty public interest in shining a light on the FBI’s investigation of major

political corruption and the DOJ’s ultimate decision not to prosecute a prominent

32 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 41 of 59

member of the Congress for any involvement he may have had.” 746 F.3d at

1092-93. The Court emphasized that there is clearly a strong public interest “in

examining the FBI’s investigation of, and the DOJ’s decision not to charge, the

former House Majority Leader for his alleged involvement in one of the most

significant political corruption scandals in recent memory.” Id. at 1094. The

Court explained specifically the value of the records responsive to CREW’s FOIA

request:

Disclosure of the FD-302s and investigative materials could shed light on how the FBI and the DOJ handle the investigation and prosecution of crimes that undermine the very foundation of our government. As the DOJ itself explained, the requested records relate to “a wide- ranging public corruption investigation as part of (the FBI’s) ongoing efforts to root out systemic corruption within the highest levels of government.” Disclosure of the records would likely reveal much about the diligence of the FBI’s investigation and the DOJ’s exercise of its prosecutorial discretion: whether the government had the evidence but nevertheless pulled its punches. Indeed, we have repeatedly recognized a public interest in the manner in which the DOJ carries out substantive law enforcement policy . . . .

Id. at 1093 (citations omitted).

Inexplicably, the district court on remand held, without elaboration, that

“[w]hile releasing the withheld names would provide more information about Mr.

DeLay’s conduct and associations, it is unclear from plaintiff’s argument how

doing so would serve the public interest in shedding light on how the Department

conducted the investigation . . . .” JA 314 (emphasis in original).

33 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 42 of 59

Contrary to the court’s brusque conclusion, CREW clearly articulated the

public interest in disclosure. CREW emphasized that DOJ had reiterated, on

remand, that “[t]he materials sought [by CREW] include summaries of witness

interviews, FBI 302s, and investigation reports that contain information about an

investigation of Tom DeLay and his connections to other individuals and entities.”

JA 214 (emphasis added). It was thus apparent that the public’s assessment of

“how the FBI and the DOJ handle[d] the investigation” and “DOJ’s exercise of its

prosecutorial discretion,” 746 F.3d at 1093, necessarily requires an understanding

of those “connections” and relationships. See also JA 73 (FBI declarant describing

“an interwoven tapestry of connections among the individuals”). Despite the

obvious and clear role that information establishing “connections” between Mr.

DeLay and the other implicated individuals would play in assessing DOJ’s

handling of the investigation, the agency did not even attempt to refute CREW’s

argument on that point. DOJ’s only argument was the weak assertion, without any

elaboration, that “[t]he FBI determined that revealing this information would not

enlighten the public about how FBI conducts its internal operations and

investigations, and therefore that the disclosure of this information would

34 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 43 of 59

constitute a clearly unwarranted invasion of these individuals’ personal privacy.”

JA 219.14

DOJ, on remand, thus clung to its earlier, flawed determination that the

public interest would not be served by disclosure of information concerning its

investigation of Mr. DeLay. But this Court foreclosed reliance upon that position:

“We do not accept the DOJ’s contention that there is no public interest in

examining the FBI’s investigation of, and the DOJ’s decision not to charge, the

former House Majority Leader for his alleged involvement in one of the most

significant political corruption scandals in recent memory.” 746 F.3d at 1094

(emphasis in original). The district court failed to incorporate that conclusion into

its analysis on remand.

Consistent with its earlier ruling, the Court should reject the district court’s

determination that the privacy interests of any individual whose association with

the Abramoff or DeLay investigations has already been confirmed somehow trump

the “weighty public interest in shining a light on the FBI’s investigation of major

political corruption and the DOJ’s ultimate decision not to prosecute [Mr. DeLay].”

Id. at 1092-93.

14 DOJ also asserted that “unless access to the names and addresses of private individuals appearing in files . . . is necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity, such information is exempt from disclosure.” Id. (citation and internal quotation marks omitted). But, as noted supra, this Court soundly rejected that assertion. 746 F.3d at 1095.

35 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 44 of 59

CONCLUSION

The judgment of the district court should be reversed.

Respectfully submitted,

/s/ David L. Sobel DAVID L. SOBEL 5335 Wisconsin Avenue, N.W. Suite 640 Washington, DC 20015 (202) 246-6180

ADAM J. RAPPAPORT Citizens for Responsibility and Ethics in Washington 455 Massachusetts Avenue, N.W., Floor 6 Washington, DC 20001 (202) 408-5565

Counsel for Appellant

36 USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 45 of 59

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App. P. 28.1(e)(2) or 32(a)(7)(B) because:

[ X ] this brief contains [8,806] words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or

[ ] this brief uses a monospaced typeface and contains [state the number of] lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:

[ X ] this brief has been prepared in a proportionally spaced typeface using [Microsoft Word 2007] in [14pt Times New Roman]; or

[ ] this brief has been prepared in a monospaced typeface using [state name and version of word processing program] with [state number of characters per inch and name of type style].

Dated: January 24, 2017 /s/ David L. Sobel Counsel for Appellant USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 46 of 59

CERTIFICATE OF FILING AND SERVICE

I hereby certify that on this 24th day of January, 2017, I caused this Brief of

Appellant to be filed electronically with the Clerk of the Court using the CM/ECF

System, which will send notice of such filing to the following registered CM/ECF

users:

William E. Havemann Matthew M. Collette U.S. DEPARTMENT OF JUSTICE (DOJ) Civil Division 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 514-2000

Counsel for Appellee

/s/ David L. Sobel Counsel for Appellant

USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 47 of 59

ADDENDUM USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 48 of 59

TABLE OF CONTENTS

Addendum Page

5 U.S.C. § 552 ...... Add. 1

Add. i USCA Case #16-5138 Document #1657109 Filed: 01/24/2017 Page 49 of 59 5 USC 552

NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see http://www.law.cornell.edu/uscode/uscprint.html).

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES PART I - THE AGENCIES GENERALLY CHAPTER 5 - ADMINISTRATIVE PROCEDURE SUBCHAPTER II - ADMINISTRATIVE PROCEDURE

§ 552. Public information; agency rules, opinions, orders, records, and proceedings (a) Each agency shall make available to the public information as follows: (1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public— (A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions; (B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available; (C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations; (D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and (E) each amendment, revision, or repeal of the foregoing. Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register. (2) Each agency, in accordance with published rules, shall make available for public inspection and copying— (A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; (C) administrative staff manuals and instructions to staff that affect a member of the public; (D) copies of all records, regardless of form or format, which have been released to any person under paragraph (3) and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; and (E) a general index of the records referred to under subparagraph (D); unless the materials are promptly published and copies offered for sale. For records created on or after November 1, 1996, within one year after such date, each agency shall make such records available, including by computer telecommunications or, if computer telecommunications means have not been established by the agency, by other electronic means. To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, staff manual, instruction, or copies of records referred to in subparagraph (D). However, in each case the justification for the deletion shall be explained fully in writing, and the extent of such deletion shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest protected by the exemption in subsection (b) under which the deletion is made. If technically feasible, the extent of the deletion shall be indicated at the

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place in the record where the deletion was made. Each agency shall also maintain and make available for public inspection and copying current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available or published. Each agency shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplements thereto unless it determines by order published in the Federal Register that the publication would be unnecessary and impracticable, in which case the agency shall nonetheless provide copies of such index on request at a cost not to exceed the direct cost of duplication. Each agency shall make the index referred to in subparagraph (E) available by computer telecommunications by December 31, 1999. A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if— (i) it has been indexed and either made available or published as provided by this paragraph; or (ii) the party has actual and timely notice of the terms thereof. (3) (A) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, and except as provided in subparagraph (E), each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person. (B) In making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format. Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section. (C) In responding under this paragraph to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency’s automated information system. (D) For purposes of this paragraph, the term “search” means to review, manually or by automated means, agency records for the purpose of locating those records which are responsive to a request. (E) An agency, or part of an agency, that is an element of the intelligence community (as that term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a (4))) shall not make any record available under this paragraph to— (i) any government entity, other than a State, territory, commonwealth, or district of the United States, or any subdivision thereof; or (ii) a representative of a government entity described in clause (i). (4) (A) (i) In order to carry out the provisions of this section, each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying the schedule of fees applicable to the processing of requests under this section and establishing procedures and guidelines for determining when such fees should be waived or reduced. Such schedule shall conform to the guidelines which shall be promulgated, pursuant to notice and receipt of public comment, by the Director of the Office of Management and Budget and which shall provide for a uniform schedule of fees for all agencies. (ii) Such agency regulations shall provide that— (I) fees shall be limited to reasonable standard charges for document search, duplication, and review, when records are requested for commercial use;

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NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see http://www.law.cornell.edu/uscode/uscprint.html).

(II) fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media; and (III) for any request not described in (I) or (II), fees shall be limited to reasonable standard charges for document search and duplication. In this clause, the term “a representative of the news media” means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this clause, the term “news” means information that is about current events or that would be of current interest to the public. Examples of news-media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of “news”) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for such an expectation; the Government may also consider the past publication record of the requester in making such a determination. (iii) Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. (iv) Fee schedules shall provide for the recovery of only the direct costs of search, duplication, or review. Review costs shall include only the direct costs incurred during the initial examination of a document for the purposes of determining whether the documents must be disclosed under this section and for the purposes of withholding any portions exempt from disclosure under this section. Review costs may not include any costs incurred in resolving issues of law or policy that may be raised in the course of processing a request under this section. No fee may be charged by any agency under this section— (I) if the costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee; or (II) for any request described in clause (ii) (II) or (III) of this subparagraph for the first two hours of search time or for the first one hundred pages of duplication. (v) No agency may require advance payment of any fee unless the requester has previously failed to pay fees in a timely fashion, or the agency has determined that the fee will exceed $250. (vi) Nothing in this subparagraph shall supersede fees chargeable under a statute specifically providing for setting the level of fees for particular types of records. (vii) In any action by a requester regarding the waiver of fees under this section, the court shall determine the matter de novo: Provided, That the court’s review of the matter shall be limited to the record before the agency. (viii) An agency shall not assess search fees (or in the case of a requester described under clause (ii)(II), duplication fees) under this subparagraph if the agency fails to comply with any time limit under paragraph (6), if no unusual or exceptional circumstances (as those

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NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see http://www.law.cornell.edu/uscode/uscprint.html).

terms are defined for purposes of paragraphs (6)(B) and (C), respectively) apply to the processing of the request. (B) On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action. In addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the agency’s determination as to technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B). (C) Notwithstanding any other provision of law, the defendant shall serve an answer or otherwise plead to any complaint made under this subsection within thirty days after service upon the defendant of the pleading in which such complaint is made, unless the court otherwise directs for good cause shown. [(D) Repealed. Pub. L. 98–620, title IV, § 402(2), Nov. 8, 1984, 98 Stat. 3357.] (E) (i) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed. (ii) For purposes of this subparagraph, a complainant has substantially prevailed if the complainant has obtained relief through either— (I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial. (F) (i) Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends. (ii) The Attorney General shall— (I) notify the Special Counsel of each civil action described under the first sentence of clause (i); and (II) annually submit a report to Congress on the number of such civil actions in the preceding year. (iii) The Special Counsel shall annually submit a report to Congress on the actions taken by the Special Counsel under clause (i). (G) In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member.

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NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see http://www.law.cornell.edu/uscode/uscprint.html).

(5) Each agency having more than one member shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding. (6) (A) Each agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall— (i) determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination; and (ii) make a determination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal. If on appeal the denial of the request for records is in whole or in part upheld, the agency shall notify the person making such request of the provisions for judicial review of that determination under paragraph (4) of this subsection. The 20-day period under clause (i) shall commence on the date on which the request is first received by the appropriate component of the agency, but in any event not later than ten days after the request is first received by any component of the agency that is designated in the agency’s regulations under this section to receive requests under this section. The 20-day period shall not be tolled by the agency except— (I) that the agency may make one request to the requester for information and toll the 20-day period while it is awaiting such information that it has reasonably requested from the requester under this section; or (II) if necessary to clarify with the requester issues regarding fee assessment. In either case, the agency’s receipt of the requester’s response to the agency’s request for information or clarification ends the tolling period. (B) (i) In unusual circumstances as specified in this subparagraph, the time limits prescribed in either clause (i) or clause (ii) of subparagraph (A) may be extended by written notice to the person making such request setting forth the unusual circumstances for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension for more than ten working days, except as provided in clause (ii) of this subparagraph. (ii) With respect to a request for which a written notice under clause (i) extends the time limits prescribed under clause (i) of subparagraph (A), the agency shall notify the person making the request if the request cannot be processed within the time limit specified in that clause and shall provide the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request. To aid the requester, each agency shall make available its FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the agency. Refusal by the person to reasonably modify the request or arrange such an alternative time frame shall be considered as a factor in determining whether exceptional circumstances exist for purposes of subparagraph (C). (iii) As used in this subparagraph, “unusual circumstances” means, but only to the extent reasonably necessary to the proper processing of the particular requests— (I) the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; (II) the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or

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NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see http://www.law.cornell.edu/uscode/uscprint.html).

(III) the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein. (iv) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for the aggregation of certain requests by the same requestor, or by a group of requestors acting in concert, if the agency reasonably believes that such requests actually constitute a single request, which would otherwise satisfy the unusual circumstances specified in this subparagraph, and the requests involve clearly related matters. Multiple requests involving unrelated matters shall not be aggregated. (C) (i) Any person making a request to any agency for records under paragraph (1), (2), or (3) of this subsection shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph. If the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records. Upon any determination by an agency to comply with a request for records, the records shall be made promptly available to such person making such request. Any notification of denial of any request for records under this subsection shall set forth the names and titles or positions of each person responsible for the denial of such request. (ii) For purposes of this subparagraph, the term “exceptional circumstances” does not include a delay that results from a predictable agency workload of requests under this section, unless the agency demonstrates reasonable progress in reducing its backlog of pending requests. (iii) Refusal by a person to reasonably modify the scope of a request or arrange an alternative time frame for processing a request (or a modified request) under clause (ii) after being given an opportunity to do so by the agency to whom the person made the request shall be considered as a factor in determining whether exceptional circumstances exist for purposes of this subparagraph. (D) (i) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for multitrack processing of requests for records based on the amount of work or time (or both) involved in processing requests. (ii) Regulations under this subparagraph may provide a person making a request that does not qualify for the fastest multitrack processing an opportunity to limit the scope of the request in order to qualify for faster processing. (iii) This subparagraph shall not be considered to affect the requirement under subparagraph (C) to exercise due diligence. (E) (i) Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, providing for expedited processing of requests for records— (I) in cases in which the person requesting the records demonstrates a compelling need; and (II) in other cases determined by the agency. (ii) Notwithstanding clause (i), regulations under this subparagraph must ensure— (I) that a determination of whether to provide expedited processing shall be made, and notice of the determination shall be provided to the person making the request, within 10 days after the date of the request; and (II) expeditious consideration of administrative appeals of such determinations of whether to provide expedited processing.

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(iii) An agency shall process as soon as practicable any request for records to which the agency has granted expedited processing under this subparagraph. Agency action to deny or affirm denial of a request for expedited processing pursuant to this subparagraph, and failure by an agency to respond in a timely manner to such a request shall be subject to judicial review under paragraph (4), except that the judicial review shall be based on the record before the agency at the time of the determination. (iv) A district court of the United States shall not have jurisdiction to review an agency denial of expedited processing of a request for records after the agency has provided a complete response to the request. (v) For purposes of this subparagraph, the term “compelling need” means— (I) that a failure to obtain requested records on an expedited basis under this paragraph could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or (II) with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity. (vi) A demonstration of a compelling need by a person making a request for expedited processing shall be made by a statement certified by such person to be true and correct to the best of such person’s knowledge and belief. (F) In denying a request for records, in whole or in part, an agency shall make a reasonable effort to estimate the volume of any requested matter the provision of which is denied, and shall provide any such estimate to the person making the request, unless providing such estimate would harm an interest protected by the exemption in subsection (b) pursuant to which the denial is made. (7) Each agency shall— (A) establish a system to assign an individualized tracking number for each request received that will take longer than ten days to process and provide to each person making a request the tracking number assigned to the request; and (B) establish a telephone line or Internet service that provides information about the status of a request to the person making the request using the assigned tracking number, including— (i) the date on which the agency originally received the request; and (ii) an estimated date on which the agency will complete action on the request. (b) This section does not apply to matters that are— (1) (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order; (2) related solely to the internal personnel rules and practices of an agency; (3) specifically exempted from disclosure by statute (other than section 552b of this title), if that statute— (A) (i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph. (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;

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(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual; (8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or (9) geological and geophysical information and data, including maps, concerning wells. Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted, and the exemption under which the deletion is made, shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted, and the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made. (c) (1) Whenever a request is made which involves access to records described in subsection (b)(7)(A) and— (A) the investigation or proceeding involves a possible violation of criminal law; and (B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section. (2) Whenever informant records maintained by a criminal law enforcement agency under an informant’s name or personal identifier are requested by a third party according to the informant’s name or personal identifier, the agency may treat the records as not subject to the requirements of this section unless the informant’s status as an informant has been officially confirmed. (3) Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in subsection (b)(1), the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section.

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NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see http://www.law.cornell.edu/uscode/uscprint.html).

(d) This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress. (e) (1) On or before February 1 of each year, each agency shall submit to the Attorney General of the United States a report which shall cover the preceding fiscal year and which shall include— (A) the number of determinations made by the agency not to comply with requests for records made to such agency under subsection (a) and the reasons for each such determination; (B) (i) the number of appeals made by persons under subsection (a)(6), the result of such appeals, and the reason for the action upon each appeal that results in a denial of information; and (ii) a complete list of all statutes that the agency relies upon to authorize the agency to withhold information under subsection (b)(3), the number of occasions on which each statute was relied upon, a description of whether a court has upheld the decision of the agency to withhold information under each such statute, and a concise description of the scope of any information withheld; (C) the number of requests for records pending before the agency as of September 30 of the preceding year, and the median and average number of days that such requests had been pending before the agency as of that date; (D) the number of requests for records received by the agency and the number of requests which the agency processed; (E) the median number of days taken by the agency to process different types of requests, based on the date on which the requests were received by the agency; (F) the average number of days for the agency to respond to a request beginning on the date on which the request was received by the agency, the median number of days for the agency to respond to such requests, and the range in number of days for the agency to respond to such requests; (G) based on the number of business days that have elapsed since each request was originally received by the agency— (i) the number of requests for records to which the agency has responded with a determination within a period up to and including 20 days, and in 20-day increments up to and including 200 days; (ii) the number of requests for records to which the agency has responded with a determination within a period greater than 200 days and less than 301 days; (iii) the number of requests for records to which the agency has responded with a determination within a period greater than 300 days and less than 401 days; and (iv) the number of requests for records to which the agency has responded with a determination within a period greater than 400 days; (H) the average number of days for the agency to provide the granted information beginning on the date on which the request was originally filed, the median number of days for the agency to provide the granted information, and the range in number of days for the agency to provide the granted information; (I) the median and average number of days for the agency to respond to administrative appeals based on the date on which the appeals originally were received by the agency, the highest number of business days taken by the agency to respond to an administrative appeal, and the lowest number of business days taken by the agency to respond to an administrative appeal; (J) data on the 10 active requests with the earliest filing dates pending at each agency, including the amount of time that has elapsed since each request was originally received by the agency;

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NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see http://www.law.cornell.edu/uscode/uscprint.html).

(K) data on the 10 active administrative appeals with the earliest filing dates pending before the agency as of September 30 of the preceding year, including the number of business days that have elapsed since the requests were originally received by the agency; (L) the number of expedited review requests that are granted and denied, the average and median number of days for adjudicating expedited review requests, and the number adjudicated within the required 10 days; (M) the number of fee waiver requests that are granted and denied, and the average and median number of days for adjudicating fee waiver determinations; (N) the total amount of fees collected by the agency for processing requests; and (O) the number of full-time staff of the agency devoted to processing requests for records under this section, and the total amount expended by the agency for processing such requests. (2) Information in each report submitted under paragraph (1) shall be expressed in terms of each principal component of the agency and for the agency overall. (3) Each agency shall make each such report available to the public including by computer telecommunications, or if computer telecommunications means have not been established by the agency, by other electronic means. In addition, each agency shall make the raw statistical data used in its reports available electronically to the public upon request. (4) The Attorney General of the United States shall make each report which has been made available by electronic means available at a single electronic access point. The Attorney General of the United States shall notify the Chairman and ranking minority member of the Committee on Government Reform and Oversight of the House of Representatives and the Chairman and ranking minority member of the Committees on Governmental Affairs and the Judiciary of the Senate, no later than April 1 of the year in which each such report is issued, that such reports are available by electronic means. (5) The Attorney General of the United States, in consultation with the Director of the Office of Management and Budget, shall develop reporting and performance guidelines in connection with reports required by this subsection by October 1, 1997, and may establish additional requirements for such reports as the Attorney General determines may be useful. (6) The Attorney General of the United States shall submit an annual report on or before April 1 of each calendar year which shall include for the prior calendar year a listing of the number of cases arising under this section, the exemption involved in each case, the disposition of such case, and the cost, fees, and penalties assessed under subparagraphs (E), (F), and (G) of subsection (a)(4). Such report shall also include a description of the efforts undertaken by the Department of Justice to encourage agency compliance with this section. (f) For purposes of this section, the term— (1) “agency” as defined in section 551 (1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency; and (2) “record” and any other term used in this section in reference to information includes— (A) any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format; and (B) any information described under subparagraph (A) that is maintained for an agency by an entity under Government contract, for the purposes of records management. (g) The head of each agency shall prepare and make publicly available upon request, reference material or a guide for requesting records or information from the agency, subject to the exemptions in subsection (b), including— (1) an index of all major information systems of the agency; (2) a description of major information and record locator systems maintained by the agency; and

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NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see http://www.law.cornell.edu/uscode/uscprint.html).

(3) a handbook for obtaining various types and categories of public information from the agency pursuant to chapter 35 of title 44, and under this section. (h) (1) There is established the Office of Government Information Services within the National Archives and Records Administration. (2) The Office of Government Information Services shall— (A) review policies and procedures of administrative agencies under this section; (B) review compliance with this section by administrative agencies; and (C) recommend policy changes to Congress and the President to improve the administration of this section. (3) The Office of Government Information Services shall offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a non-exclusive alternative to litigation and, at the discretion of the Office, may issue advisory opinions if mediation has not resolved the dispute. (i) The Government Accountability Office shall conduct audits of administrative agencies on the implementation of this section and issue reports detailing the results of such audits. (j) Each agency shall designate a Chief FOIA Officer who shall be a senior official of such agency (at the Assistant Secretary or equivalent level). (k) The Chief FOIA Officer of each agency shall, subject to the authority of the head of the agency— (1) have agency-wide responsibility for efficient and appropriate compliance with this section; (2) monitor implementation of this section throughout the agency and keep the head of the agency, the chief legal officer of the agency, and the Attorney General appropriately informed of the agency’s performance in implementing this section; (3) recommend to the head of the agency such adjustments to agency practices, policies, personnel, and funding as may be necessary to improve its implementation of this section; (4) review and report to the Attorney General, through the head of the agency, at such times and in such formats as the Attorney General may direct, on the agency’s performance in implementing this section; (5) facilitate public understanding of the purposes of the statutory exemptions of this section by including concise descriptions of the exemptions in both the agency’s handbook issued under subsection (g), and the agency’s annual report on this section, and by providing an overview, where appropriate, of certain general categories of agency records to which those exemptions apply; and (6) designate one or more FOIA Public Liaisons. (l) FOIA Public Liaisons shall report to the agency Chief FOIA Officer and shall serve as supervisory officials to whom a requester under this section can raise concerns about the service the requester has received from the FOIA Requester Center, following an initial response from the FOIA Requester Center Staff. FOIA Public Liaisons shall be responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 383; Pub. L. 90–23, § 1, June 5, 1967, 81 Stat. 54; Pub. L. 93–502, §§ 1–3, Nov. 21, 1974, 88 Stat. 1561–1564; Pub. L. 94–409, § 5(b), Sept. 13, 1976, 90 Stat. 1247; Pub. L. 95–454, title IX, § 906(a)(10), Oct. 13, 1978, 92 Stat. 1225; Pub. L. 98–620, title IV, § 402(2), Nov. 8, 1984, 98 Stat. 3357; Pub. L. 99–570, title I, §§ 1802, 1803, Oct. 27, 1986, 100 Stat. 3207–48, 3207–49; Pub. L. 104–231, §§ 3–11, Oct. 2, 1996, 110 Stat. 3049–3054; Pub. L. 107–306, title III, § 312, Nov. 27, 2002, 116 Stat. 2390; Pub. L. 110–175, §§ 3, 4 (a), 5, 6 (a)(1), (b)(1), 7 (a), 8–10 (a), 12, Dec. 31, 2007, 121 Stat. 2525–2530; Pub. L. 111–83, title V, § 564(b), Oct. 28, 2009, 123 Stat. 2184.)

Historical and Revision Notes

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