IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ... · Case 1:11-cv-00592-RJL Document 9-1 Filed 08/25/11 Page 1 of 46 2 death or a privacy waiver, it is the general practice

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) CITIZENS FOR RESPONSIBILITY ) AND ETHICS IN WASHINGTON ) ) Plaintiff, ) ) v. ) Civil Action No. 1:11-cv-00592 (RJL) ) U.S. DEPARTMENT OF JUSTICE ) ) Defendant. ) ____________________________________)

DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

STATEMENT

This action pertains to two Freedom of Information (FOIA) requests that Plaintiff,

Citizens for Responsibility and Ethics in Washington (CREW), submitted to Defendant, the

United States Department of Justice (“DOJ”). These requests sought specific types of documents

from the Federal Bureau of Investigation (“FBI”) and the Criminal Division (“CRM”),

components of DOJ, related to an alleged investigation by DOJ and FBI (“the components”) of

former Congressman Tom DeLay. Because DOJ and its components have fulfilled all of their

obligations under the FOIA, 5 U.S.C. § 552, they respectfully request that this Court enter

summary judgment in their favor pursuant to Rule 56(b) of the Federal Rules of Civil Procedure.

As described in this Memorandum and the attached Declarations and Exhibits, the FBI

and Criminal Division have developed policies for responding to and processing requests for

third-party information pursuant to the FOIA. Specifically, unless a requester identifies a public

interest in disclosure that outweighs any privacy interests of the third party or submits proof of

Case 1:11-cv-00592-RJL Document 9-1 Filed 08/25/11 Page 1 of 46

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death or a privacy waiver, it is the general practice of FBI and CRM to withhold third-party

records pursuant to FOIA Exemptions 6 and 7(C). Although Plaintiff challenges these practices,

Courts in this Circuit have correctly upheld these policies, finding them to be tailored to

Congress’ concern that release of certain information may constitute a violation of a person’s

privacy, and finding them to be an efficient use of agency resources. See, e.g. Blackwell v. FBI,

No. 10-5072, 2011 WL 2600831, at *2-3 (D.C. Cir. July 1, 2011); Lewis v. U.S. Dep’t of Justice,

609 F. Supp. 2d 80, 84 (D.D.C. 2009); see also Oguaju v. United States, 288 F.3d 448, 451 (D.C.

Cir. 2002), vacated and remanded on other grounds, 541 U.S. 970 (2004), reinstated, 378 F.3d

1115 (D.C. Cir. 2004); CREW v. Nat’l Indian Gaming Comm’n, 467 F. Supp. 2d 40, 55 (D.D.C.

2006). DOJ and its components are entitled to summary judgment because they appropriately

withheld the requested documents under these policies.

In this particular case, although not required to do so because any responsive documents

are exempt from disclosure under the above-described policies, both the FBI and CRM

conducted searches to identify documents responsive to CREW’s requests. As a result, the FBI

and CRM determined that all responsive records should also be withheld in their entirety under

FOIA Exemption 7(A), and that FOIA Exemptions 2, 3, 5, 6, 7(C), 7(D) and 7(E) also protect

responsive information from disclosure. The components’ applications of these exemptions were

proper, as were their determinations that no reasonably segregable information existed.

Accordingly, Defendant is also entitled to summary judgment on these grounds.

I. STATUTORY BACKGROUND

The FOIA, 5 U.S.C. § 552, “represents a balance struck by Congress between the

public’s right to know and the government’s legitimate interest in keeping certain information

confidential.” Ctr. For Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir.


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2003) (citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)). While the FOIA

requires agency disclosure under certain circumstances, it also recognizes “that public disclosure

is not always in the public interest.” Baldridge v. Shapiro, 455 U.S. 345, 352 (1982).

Accordingly, the statute requires agencies to release documents responsive to a properly

submitted request but also provides nine statutory exemptions to this general disclosure

obligation. See 5 U.S.C. §§ 552(a)(3), (b)(1)-(b)(9). The exemptions are grounded in Congress’

recognition “that legitimate governmental and private interests could be harmed by release of

certain types of information.” FBI v. Abramson, 456 U.S. 615, 621 (1982). Thus, while the

Supreme Court has said these exemptions are to be “narrowly construed,” Id., 456 U.S. at 630, it

has cautioned courts not to fail to give the exemptions “meaningful reach and application.” John

Doe Agency, 493 U.S. at 152.

II. CREW’S FOIA REQUESTS

By letters dated October 19, 2010, CREW sought from the FBI and CRM:

[A]ny witness statements, investigation reports, prosecution memoranda, and Federal Bureau of Investigation (‘FBI’) 302 reports related to the FBI’s and DOJ’s investigation of former House Majority Leader Tom DeLay. This includes, but is not limited to, the FBI’s and DOJ’s investigation of relationships between Mr. DeLay and Christine DeLay, Dani DeLay, Jack Abramoff, Edwin Buckham, Tony Rudy, Michael Scanlon, Susan Hirshmann, the Alexander Strategy Group, the National Center for Public Policy Research, eLottery, Inc., the U.S. Family Network, Americans for a Republican Majority PAC (“ARMPAC”), Texans for a Republican Majority PAC (“TRMPAC”), and/or the Commonwealth of the Northern Marianas Islands.

Hardy Decl. ¶ 5; Ellis Decl. ¶ 6. Plaintiff asked that its request be processed on an expedited

basis.1

1 CREW also requested a waiver of search and duplication fees. Hardy Decl. ¶ 5; Ex. A; Ellis Decl. Ex. A.

Hardy Decl. ¶ 5; Ellis Decl. ¶ 7. As required by DOJ regulation, Plaintiff also submitted

its request for expedited processing to DOJ’s Office of Public Affairs (“OPA”). Hardy Decl. ¶ 6;


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Ellis Decl. ¶ 7. OPA granted Plaintiff’s request for expedited processing. Hardy Decl. ¶ 6; Ellis

Decl. ¶ 8.

A. CREW’s Request to the FBI

After receiving CREW’s request, the FBI, by letter dated October 22, 2010, advised

Plaintiff that its third-party request for information pertaining to Tom DeLay had been assigned

FOIPA Number 1156044-000, but because Plaintiff had requested records concerning a third-

party, the FBI could not process the request without either the express authorization and consent

of the third party, proof that the third party was deceased, or a clear demonstration that the public

interest in disclosure outweighed the third party’s personal privacy interest and that a significant

public benefit would result from disclosure of the requested records. Hardy Decl. ¶ 7. The FBI

further informed Plaintiff that even if it could not meet these requirements, the FBI would still

search for any public records maintained in its files, such as court records and news clippings, if

Plaintiff so desired, but also cautioned that its response “should not be considered an indication

of whether or not records responsive to your request exist in FBI files.” Id. Plaintiff did not

respond to the October 22, 2010 letter, nor did it provide a valid third-party waiver or request

any public source material. Id. ¶ 10. As a result, FBI administratively closed Plaintiff’s FOIA

request on or about December 14, 2010. Id. ¶ 10.

By letter dated November 9, 2010, CREW appealed the FBI’s denial. Id. ¶ 8. DOJ

Office of Information Policy (OIP) responded in a letter dated November 24, 2010, informing

Plaintiff that it had assigned appeal number AP-2011-00398 to CREW’s appeal. Id. ¶ 9.

Plaintiff filed the instant suit on or about March 22, 2011. Id. ¶ 10. By letter dated April 7,

2011, OIP informed Plaintiff that it had closed its administrative appeal due to the

commencement of this litigation. Id. ¶ 11.


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B. CREW’s Request to CRM

After receiving CREW’s request, the Criminal Division asked Plaintiff to clarify its

request, including identification of the timeframe(s) covered by the request and explanation

about the reference to relationships between Mr. DeLay and other individuals mentioned in the

request. Ellis Decl. ¶ 9. After speaking with counsel from CRM, CREW sent a letter dated

October 27, 2010 stating that it was seeking “witness statements, investigation reports,

prosecution memoranda, and FBI 302 reports from DOJ’s investigation into illegal lobbying

activities in which Mr. DeLay is named or otherwise identified.” Id. ¶ 11.

On November 1, 2010, CRM acknowledged Plaintiff’s request, as clarified in its October

27, 2010 letter and notified Plaintiff that a search for responsive records would be conducted. Id.

¶ 12. Also on November 1, CRM initiated searches of the Division’s components likely to

possess responsive records. Id. ¶ 13.

By letter dated November 9, 2010, CRM informed Plaintiff that it had “located records

potentially responsive to the request,” but that it “invoked FOIA Exemption 7(A) to withhold the

records because they related to open and on-going law enforcement proceedings and disclosure

at that time could reasonably be expected to interfere with those proceedings by prematurely

revealing the nature and scope of evidence compiled by the government.” Id. ¶ 16. By letter

dated November 23, 2010, CREW appealed the Criminal Division’s denial. Id. ¶ 17. The DOJ

Office of Information Policy (OIP) acknowledged receipt of the appeal in a letter dated

December 10, 2010. Id. ¶ 18. Plaintiff filed the instant lawsuit on March 22, 2011, as a result of

which OIP closed Plaintiff’s appeal. Id. ¶ 19.

In addition to Exemption 7(A), on which CRM initially relied in withholding records

responsive to Plaintiff’s request, CRM has determined that responsive information is, under


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CRM’s current practice, also categorically exempt from disclosure pursuant to FOIA Exemptions

6 and 7(C). Id. ¶ 23, 26.

III. FBI AND CRM PRACTICES REGARDING FOIA REQUESTS FOR THIRD-PARTY INFORMATION

A. FBI Policy Regarding FOIA Requests for Third-Party Information

The FBI’s long-standing policy has been to withhold, on the basis of FOIA Exemptions

6 and 7(C), any responsive information when an individual seeks access to information regarding

a third party but fails to provide a Privacy Waiver from the third party or proof of death of that

third party or sufficient evidence of a significant public interest in disclosure of the materials

sought. Hardy Decl. ¶¶ 18-19. Such a response is appropriate because individuals – whether

they are suspects, witnesses, or law enforcement personnel – have a strong interest in not being

associated unwarrantedly with alleged or actual criminal activity. Id. These individuals

maintain strong privacy interests in not having their personal information disclosed. Id. Release

of their names or other personal information could cause unsolicited and unnecessary attention to

be focused on these third-parties. Id. Therefore, without receipt of a Privacy Waiver, proof of

death or a showing of significant public interest, the FBI generally provides a Glomar response,

neither confirming nor denying the existence of records. Id. In some cases, as in this one, where

an FBI investigation has been officially recognized,2

2 The only acknowledged information in this case is the existence of a broad, ongoing investigation into illegal lobbying activities. Hardy Decl. ¶ 23; Ellis Decl. n. There has been no acknowledgment of Tom DeLay’s status/role in the lobbying investigation, of any investigation pertaining specifically to Tom DeLay, or of possession of records responsive to CREW’s initial request for records “related to the FBI and DOJ’s investigation of former House Majority leader Tom DeLay.” Id.

the FBI will acknowledge the existence of

the investigation and potentially responsive files and, upon request, release to the requester


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public source information, but invoke Exemptions 6 and 7(C) for the remainder of responsive

information. See id.

In all cases, the FBI’s response relies on its balancing of the relevant privacy interest(s)

and the “public interest.” Id. ¶ 19. If a requester establishes a public interest in the disclosure of

the requested information, the FBI will balance those interests against the third-party’s privacy

interest and determine whether significant public benefit would result from disclosure of the

requested third-party records. Id. If the public interest does not outweigh the implicated privacy

interests and no significant public benefit would result from disclosure, the FBI categorically

withholds requested third-party records. See id.

B. CRM Practice Regarding FOIA Requests for Third-Party Information

Upon receipt of a request for investigatory or prosecution files pertaining to a third-party,

it is CRM’s practice to categorically deny the request unless the requester (a) provides proof of

the third-party’s death; (b) submits written consent by the third-party; or (c) demonstrates that

there is a public interest that outweighs the third party’s privacy interests. Ellis Decl. ¶ 25.

CRM categorically denies access, pursuant to FOIA Exemptions (b)(7)(C) and (b)(6), because

disclosure of information about a third party without consent, proof of death, or an overriding

public interest would constitute an unwarranted invasion of the individual’s privacy. Id.

In analyzing a request for third-party records, CRM first identifies any relevant privacy

interests; then, if the requester establishes a public interest in disclosure, CRM balances the

privacy and public interests “to determine whether there is a significant public interest that

outweighs the [] privacy interests.” Id. ¶ 31. Unless a requester clearly demonstrates “a public

interest that would outweigh the individual’s personal privacy interests and would significantly

benefit the public,” the requester is not, under CRM’s practice, entitled to disclosure of the


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requested third-party information. Id. In this case, CRM acknowledged a broad investigation

into illegal lobbying activities and asserted Exemption 7(A), among others. CRM’s initial

withholding of documents pursuant to Exemption 7(A) does not affect the validity or

applicability of CRM’s policy.

IV. STANDARD OF REVIEW

Summary judgment is the procedure by which courts resolve nearly all FOIA actions.

See Reliant Energy Power Generation, Inc. v. FERC, 520 F. Supp. 2d 194, 200 (D.D.C. 2007).

As with non-FOIA cases, summary judgment is appropriate when there is no genuine issue as to

any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R.

Civ. P. 56(c); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). A court reviews an

agency’s response to a FOIA request de novo. See 5 U.S.C. § 552(a)(4)(B).

In order to obtain summary judgment, an agency bears the burden of justifying its

decision to withhold records pursuant to FOIA’s statutory exemptions. See 5 U.S.C. §

552(a)(4)(B). An agency may satisfy its burden solely on the basis of reasonably specific

affidavits or declarations that demonstrate that the information at issue falls within the claimed

exemption(s), and are not controverted by either contrary evidence or by evidence of bad faith.

See Strunk v. U.S. Dep’t of Interior, 752 F. Supp. 2d 39, 42-43 (D.D.C. 2010); Butler v. Drug

Enforcement Admin., No, 05-1798, 2006 WL 398653, at *2 (D.D.C. Feb. 16, 2006) (quoting

Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

Agency affidavits or declarations are accorded “a presumption of good faith, which

cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other

documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting

Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)); see also Strunk, 752 F.


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Supp. 2d at 43. “Ultimately, an agency’s justification for invoking a FOIA exemption is

sufficient if it appears logical or plausible.” Wolf, 473 F.3d 370, 374-75 (D.C. Cir. 2007)

(internal quotation marks and citations omitted).

ARGUMENT

I. THE FBI AND CRM PROPERLY WITHHELD THIRD-PARTY ENFORCEMENT RECORDS PURSUANT TO FOIA EXEMPTIONS 6 AND 7(C)

As explained in detail below and in the attached Declarations, the FBI and the Criminal

Division have categorically withheld the requested material pursuant to FOIA Exemptions 6 and

7(C). The materials sought include prosecution memoranda, summaries of witness interviews,

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

Tom DeLay and his connections to other individuals and entities. Any responsive documents,

therefore, contain information about Tom DeLay and other third-parties. Because Plaintiff did

not produce a privacy waiver or proof of death for Mr. DeLay or for any of the other third-parties

mentioned in the request, the FBI and the Criminal Division, pursuant to their established

practices regarding requests for third-party information, have withheld all responsive documents

under Exemptions 6 and 7(C). Each component has properly invoked these exemptions, because

disclosing the requested materials would constitute an unwarranted invasion of personal privacy.

Defendant is, therefore, entitled to summary judgment.

Exemption 6 allows an agency to withhold information about individuals in “personnel

and medical files and similar files” when the disclosure of such information “would constitute a

clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6); see U.S. Dep’t of State

v. Washington Post Co., 456 U.S. 595, 599-600 (1982) (“[T]he primary concern of Congress in

drafting Exemption 6 was to provide for the confidentiality of personal matters.”). For this

exemption to apply, the information at issue must be maintained in a government file and apply


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to a particular individual. Washington Post Co., 456 U.S. at 602. Once this threshold

requirement is met, Exemption 6 requires the agency to balance the individual’s right to privacy

against the public’s interest in disclosure. See Dep’t of Air Force v. Rose, 425 U.S. 352, 372

(1976); Reed v. NLRB, 927 F.2d 1249, 1251 (D.C. Cir. 1991). “The privacy interest protected by

Exemption 6, ‘encompass[es] the individual’s control of information concerning his or her

person.’” U.S. Dep’t of Defense v. FLRA, 510 U.S. 487, 500 (1994) (quoting U.S. Dep’t of

Justice v. Reporters Comm., 489 U.S. 749, 763 (1989)). In contrast, “the only relevant public

interest in the [Exemption 6] balancing analysis [is] the extent to which disclosure of the

information sought would ‘she[d] light on an agency’s performance of its statutory duties’ or

otherwise let citizens know ‘what their government is up to.’” Id. at 497 (quoting Reporters

Comm., 489 U.S. at 773). It is the requester’s obligation to identify a cognizable public interest.

Absent the requester’s identification of a public interest, “the balancing requirement does not

come into play.” Griffin v. Exec. Office for U.S. Attorneys, 774 F. Supp. 2d 322, 327 (D.D.C.

2011) (citing Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 175 (2004)). Thus, “[i]n

the absence of any public interest in disclosure, any countervailing interest in privacy defeats a

FOIA request.” Oguaju v. United States, 288 F.3d at 451 (citing Nat’l Ass’n of Retired Fed.

Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989) (“[S]omething . . . outweighs nothing

every time”)).

Similarly, Exemption 7(C) exempts from disclosure “records or information compiled for

law enforcement purposes . . . to the extent that the production of such law enforcement records

or information . . . could reasonably be expected to constitute an unwarranted invasion of

personal privacy.” 5 U.S.C. § 552(b)(7), (b)(7)(C). As a threshold matter, for Exemption 7(C)

to apply the record at issue must have been compiled for law enforcement purposes. Schoenman


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v. FBI, 575 F. Supp. 2d 166, 174 (D.D.C. 2008). “In assessing whether records are compiled for

law enforcement purposes, . . . the focus is on how and under what circumstances the requested

files were compiled . . . and ‘whether the files sought relate to anything that can fairly be

characterized as an enforcement proceeding.’” Jefferson v. U.S. Dep’t of Justice, 284 F.3d 172,

176-77 (D.C. Cir. 2002) (citations omitted). The Criminal Division and the FBI are entitled to

deference when they identify materials as having been compiled for law enforcement purposes

under Exemption 7. See, e.g., Ctr. for Nat’l Sec. Studies, 331 F.3d at 926; Campbell v. U.S.

Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir. 1999). Once it has been determined that a record

was compiled for law enforcement purposes, as with Exemption 6, Exemption 7(C) requires the

agency to balance the relevant individual privacy rights against the public interest in disclosure.

See Reporters Comm., 489 U.S. at 762; Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1281

(D.C. Cir. 1992). In assessing privacy interests, the D.C. Circuit has consistently held that

Exemption 7(C) protects the privacy interests of all persons mentioned in law enforcement

records, including investigators, suspects, witnesses, and informants. Schrecker v. U.S. Dep’t of

Justice, 349 F.3d 657, 661 (D.C. Cir. 2003). “[S]uch third party information is ‘categorically

exempt’ from disclosure under exemption 7(C), in the absence of an overriding public interest in

its disclosure.” Lewis, 609 F. Supp. 2d at 84 (citing Nation Magazine, 71 F.3d 885, 896 (D.C.

Cir. 1995)).

The balancing analysis for Exemption 7(C) is similar to the analysis conducted under

Exemption 6, but the analysis under Exemption 7(C) tilts more in favor of nondisclosure. See

Reporters Comm., 489 U.S. at 756 (comparing statutory language of Exemption 6 and

Exemption 7(C)); Reed, 927 F.2d at 1251 (explaining similarity of Exemption 6 analysis and

Exemption 7(C) analysis). Because the analyses under Exemptions 6 and 7(C) are similar, case


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law pertaining to one of the privacy exemptions is often germane in considering the other, see

e.g., Reed, 927 F.2d at 1251, and Defendant considers them together here.

A. The Requested Documents Satisfy the Threshold Requirements for FOIA Exemptions 6 and 7(C)

The requested documents satisfy the threshold requirements for Exemptions 6 and 7(C):

They are information maintained in a government file that “applies to a particular individual,”

per Exemption 6, and records “compiled for law enforcement purposes,” as required by

Exemption 7. To establish that records or information were “compiled for law enforcement

purposes,” an agency need only establish a rational nexus between an investigation and one of

the agency’s law enforcement duties, and a connection between an individual or incident and a

possible security risk or violation of federal law. Blackwell, 2011 WL 2600831, at *2 (citing

Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998)). Any responsive documents

relate to an alleged investigation into unlawful lobbying activities of Jack Abramoff and others

and this investigation falls squarely within the law enforcement duties of the FBI and CRM. See

Hardy Dec. ¶ 28; Ellis Dec. ¶ 41. Moreover, the FBI and CRM, whose determinations are

entitled to deference, have concluded that any responsive information gathered as part of this

investigation readily meets the threshold requirements. See id.

B. Plaintiff Failed to Identify a Cognizable Public Interest Sufficient to Outweigh the Significant Privacy Interests of Former Congressman Tom DeLay and Others

1. Former Congressman Tom DeLay Has Significant Privacy Rights

The first step of the balancing test under both Exemption 6 and Exemption 7(C) is to

determine whether there is a privacy interest in the material to be withheld. In Reporters

Committee, the Supreme Court rejected a “cramped notion of personal privacy” under the

FOIA’s exemptions and instead emphasized that “privacy encompass[es] the individual’s control


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of information concerning his or her person.” 489 U.S. at 763. The Court noted that “[p]rivacy

is the claim of individuals . . . to determine for themselves when, how, and to what extent

information about them is communicated to others.” Id. at 764 n.16 (quotation marks and

citation omitted). Such information “includes the prosaic [] as well as the intimate and

potentially embarrassing.” Painting & Drywall Work Pres. Fund, Inc. v. Dep’t of Housing &

Urban Dev., 936 F.2d 1300, 1302 (D.C. Cir. 1991). Privacy is of particular importance in the

FOIA context because a disclosure required by FOIA is a disclosure to the public at large. Id.

For a privacy interest to be cognizable under FOIA, it must be “substantial” – but in the FOIA

context, “substantial . . . means less than it might seem. A substantial privacy interest is anything

greater than a de minimus privacy interest.” See Multi Ag Media LLC v. Dep’t of Agriculture,

515 F.3d 1224, 1229-30 (D.C. Cir. 2008); see also Consumer’s Checkbook, Ctr. For Study of

Servs. v. U.S. Dep’t of Health & Human Servs., 554 F.3d 1046, 1050 (D.C. Cir. 2009).

It is axiomatic that anything that would even associate a third party with a criminal

investigation would invade that individual’s privacy, let alone the contents of any records. Cf.

Reporters Comm., 489 U.S. at 772-73 (revealing a criminal law enforcement record implicates

the privacy interests of third parties about whom an agency receives a FOIA request); Fitzgibbon

v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990) (“It is surely beyond dispute that ‘the mention of an

individual’s name in a law enforcement file will engender comment and speculation and carries a

stigmatizing connotation.’”). “[I]ndividuals have a strong interest in not being associated

unwarrantedly with alleged criminal activity. Protection of this privacy interest is the primary

purpose of Exemption 7(C).” Stern v. FBI, 737 F.2d 84, 91-92 (D.C. Cir. 1984); see also Fund

for Constitutional Gov’t v. Nat’l Archives & Records Serv., 656 F.2d 856, 864 (D.C. Cir. 1981)

(there can be no clearer example of unwanted invasion of personal privacy then to release to the


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public that another individual was the subject of an FBI investigation); Martin v. U.S. Dep’t of

Justice, 488 F.3d 446, 457 (D.C. Cir. 2007) (privacy interests are particularly difficult to

overcome when law enforcement information regarding third parties is implicated).

As with any individual, there can be no doubt that Mr. DeLay maintains a strong privacy

interest in investigative records in which he is mentioned. See, e.g., SafeCard Servs., 926 F.2d at

1205 (people identified in criminal investigation reports have a substantial interest in keeping

their identities closed to the public, regardless of how they are characterized in the record). This

is especially so where there is no evidence on the public record that the subject of the requested

records, like Mr. DeLay, has been convicted, indicted, or even charged with a crime in the

referenced investigation. See, e.g., ACLU v. U.S. Dep’t of Justice, 698 F. Supp. 2d 163, 165

(D.D.C. Mar. 26, 2010) (7(C) “offers its greatest protection where disclosure would ‘involve the

privacy interests of individuals who were uncharged suspects of investigations or who were

merely mentioned in records”) (emphasis added).3

That Mr. DeLay formerly served as a member of Congress does not alter this analysis.

Although government officials may have a somewhat diminished privacy interest, “[they] do not

surrender all rights to personal privacy when they accept a public appointment.” Quiñon v. FBI,

86 F.3d 1222, 1230 (D.C. Cir. 1996); see also Fund for Constitutional Gov’t v. Nat’l Archives &

Records Serv., 656 F.2d 856, 864 (D.C. Cir. 1981) (holding this Circuit “has already explicitly

rejected the proposition that government officials, by virtue of their positions, forfeit their

3 Mr. DeLay’s conviction in state proceedings does not affect the FOIA balancing because prior convictions do not justify disclosure of information in wholly unrelated areas of a subject’s life. Cong. News Syndicate v. U.S. Dep’t of Justice, 438 F. Supp. 538 (D.D.C. 1977). Moreover, this Circuit has recognized that even convicted criminals have cognizable privacy rights and that documents whose release would infringe on those rights can be withheld. See, e.g., Roth v. U.S. Dep’t of Justice, 642 F.3d 1161 (D.C. Cir. 2011); Oguaju, 288 F.3d at 448.


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personal privacy for FOIA purposes”). In fact, privacy interests of public and political figures

have been repeatedly successfully invoked as the basis for withholding documents in FOIA

cases. See, e.g., Nation Magazine v. Dep’t of State, Civ. No. 92-2303, 1995 WL 17660254, at *1

(D.D.C. Aug. 18, 1995) (affirming withholding of documents related to presidential candidate

Ross Perot); Fund for Constitutional Gov’t., 656 F.2d at 864 (investigatory records of

individuals who were neither indicted nor prosecuted by Watergate Special Prosecution Force

properly withheld).

Even if Mr. DeLay’s status as a congressman lessened his privacy interest, the fact that

he is a former congressman, and has not served in a public role since 2006, would mitigate such

effect. See, e.g., McNamera v. U.S. Dep’t of Justice, 974 F. Supp. 946, 955 (W.D. Tex. 1997)

(describing request for law enforcement files on former public official as request for records of a

“private individual”).

In fact, another judge of this court has specifically upheld Mr. DeLay’s privacy interest in

investigatory files in a suit involving this same Plaintiff: In CREW v. Nat’l Indian Gaming

Comm’n, the court found that a privacy waiver would be necessary before an agency could

release investigatory files that mentioned Mr. DeLay. 467 F. Supp. 2d at 55.

Moreover, the public nature of Mr. DeLay’s prior office may actually heighten his

privacy interest here because it augments the degree of intrusion on his privacy that disclosure

would cause. See Fund for Constitutional Gov’t., 656 F.2d at 865-66. As the D.C. Circuit has

stated:

Revelation of the fact that an individual has been investigated for suspected criminal activity represents a significant intrusion on that individual’s privacy cognizable under Exemption 7(C). The degree of intrusion is indeed potentially augmented by the fact that the individual is a well known figure . . . The disclosure of that information would produce the unwarranted result of placing the named individuals in the position of having to defend their conduct in the


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public forum outside of the procedural protections normally afforded the accused in criminal proceedings.

Id. (internal citations omitted).

Neither the government’s acknowledgment of a broad investigation into lobbying

activities, nor a media report of Mr. DeLay’s purported acknowledgment of an investigation

about him ending obviates Mr. DeLay’s privacy interest: Acknowledging that an investigation

occurred is a far cry from waiving all privacy interests in information that may be contained in

that investigative file. See Kimberlin v. U.S. Dep’t of Justice, 139 F.3d 944, 949 (D.C. Cir.

1998) (holding that even where a prosecutor acknowledged to the press an investigation into his

professional conduct, he maintained a cognizable privacy interest [in] “avoiding disclosure of the

details of the investigation, of his misconduct [] his punishment and . . . an interest in preventing

[] speculative press reports of his misconduct from receiving authoritative confirmation from an

official source.”); see also Ellis Dec. ¶ 31. Moreover, Plaintiff’s suggestion that Tom DeLay’s

and others’ privacy rights are diminished because they have already been associated with the

investigation in the “widespread media coverage of the investigation, prosecutions, and

convictions related to this matter,” is unavailing. In Dow Jones & Co. v. U.S. Dep’t of Justice,

the court specifically found that prior disclosures did not diminish a congressman’s privacy

interests because the new disclosures would renew interest in the alleged misconduct and

engender a corresponding invasion of privacy. 724 F. Supp. 985, 990 (D.D.C. 1989).

Accordingly, as is the case here, media speculation about the circumstances surrounding a

possible investigation, prosecution or conviction of a third party is hardly tantamount to a waiver

of an uncharged individual’s privacy rights.4

4 Plaintiff’s requests also involve other third parties for whom plaintiff did not provide privacy waivers, proof of death or sufficient public interest, including Christine DeLay, Dani DeLay,

See Elec. Privacy Info. Ctr. v. NSA, No. 10-1533,


17

2011 WL 2710454, at *n.3 (D.D.C. July 8, 2011) (“plaintiff incorrectly argues that information,

which is widely reported in the media, is stripped of its FOIA protections”).

Having established the significant privacy interests involved, the FBI and CRM

appropriately looked to Plaintiff to identify an overriding, cognizable public interest. As

demonstrated below, Plaintiff has failed to do so.

2. Plaintiff Has Not Asserted a Sufficient Public Interest to Justify Disclosing Any of this Information

After an agency determines whether disclosure of the information threatens a protectable

privacy interest, the agency must then weigh that privacy interest against the public interest in

disclosure, if any. See Reed v. NLRB, 927 F.2d 1249, 1251 (D.C. Cir. 1991). “Public interest,”

however, has a specific meaning under FOIA: “The public interest to be taken into the balance is

that in ‘official information that sheds light on an agency’s performance of its statutory duties.’

Quiñon v. FBI, 86 F.3d 1222, 1231 (D.C. Cir. 1996) (citing Reporters Comm., 489 U.S. at 773);

see also Favish, 541 U.S. 157, 174 (2004) (“the justification most likely to satisfy Exemption

7(C)’s public interest requirement is that the information is necessary to show the . . . agency . . .

acted negligently or otherwise improperly in the performance of their duties”).

Jack Abramoff, Tony Rudy, Michael Scanlon and Susan Hirshmann. Hardy Decl. n.5. For the reasons described above, the privacy rights of these individuals would also be implicated in the production of any responsive records. While Plaintiff mentions that some of these individuals may not have privacy rights because they have been convicted of crimes, see Hardy Decl. Ex. D, even convicted criminals maintain privacy rights. See supra n.3. Plaintiff also suggests that responsive records should be disclosed because, in addition to Tom DeLay and the other third-parties, the requests named corporate entities, which are unprotected by the Privacy Act, which covers only individuals. Hardy Decl., Ex. D. This argument is unavailing because, as described below, any information about the corporate entities is inextricably linked to the information about the individuals whose significant privacy rights would be intruded upon if the records were disclosed. See infra p. 45.


18

In its FOIA request, Plaintiff contended that disclosure of the requested information

would serve the public interest because the requested investigatory records “are likely to

contribute to greater public awareness of alleged malfeasance and possible criminal behavior by

former majority leader of the House of Representative’s, and of DOJ’s recently concluded

investigation into Mr. DeLay’s activities.” Hardy Decl. ¶ 21; Ellis Decl. ¶ 33. Plaintiff further

alleged that the requested documents “would 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.” Ellis Decl. ¶ 33. It is well established that Plaintiff’s proffered

public interest justifications are insufficient to outweigh Mr. DeLay’s privacy interest.

Plaintiff first argues that disclosure of the requested records is warranted because release

of the information will bring former Congressmen DeLay’s allegedly criminal activities to light.

See Hardy Decl. ¶ 21; Ellis Decl. ¶ 33. However, information about a public figure who is the

subject of an investigation does not suffice; it is only the conduct of the agency holding the

requested documents that can constitute a public interest. See, e.g., Schrecker, 349 F.3d at 666

(Where the type of information sought “is simply not very probative of an agency’s behavior or

performance” the D.C. Circuit has rejected requests for disclosure); Jefferson v. U.S. Dep’t of

Justice, 284 F.3d 172 (D.C. Cir. 2002) (privacy interests outweigh public interest where asserted

public interest was in the investigation of a prosecutor and plaintiff failed to show that access to

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

illegal activity); Beck v. Dep’t of Justice, 997 F.2d 1489 (D.C. Cir. 1993) (identity of one or two

individual relatively low level government wrongdoers released in isolation does not provide

information about the agency’s own conduct); SafeCard Servs., 926 F.2d 1197 (there is

significant public interest only if there is compelling evidence that the agency is engaged in


19

illegal activity). Plaintiff has not, and indeed, cannot show that Mr. DeLay’s activities, even if

improper or illegal, somehow constituted agency activity. Consequently, the rationale for

disclosure of the requested records at issue does not fall within the “public interest” definition as

contemplated by FOIA and developed case law. See Quiñon, 86 F.3d at 1231 (“[d]isclosure of

information that ‘reveals little or nothing about an agency’s own conduct’ does not further the

public interest envisaged by FOIA”) (internal citations omitted); Nation Magazine v. Dep’t of

State, No. 92-2303, 1995 WL 17660254, at * 10 (D.D.C. Aug. 18, 1995) (holding that revealing

whether former presidential candidate Ross Perot had been investigated would not tell the public

anything about the agency and that while such information may be “of interest” to the public, it

is not in the “public interest” protected by FOIA).

Even Plaintiff acknowledges the weakness of its argument. In the only authority Plaintiff

cites in its request in support of this “public interest,” Reporters Committee, the Court actually

affirmed the categorical withholding of documents, finding that the asserted public interest did

not outweigh the privacy interests. 489 U.S. 749. Plaintiff’s reliance on this case is

understandably half-hearted: Plaintiff notes merely that the case “suggest[s] a public interest in

documents that would reveal a congressman’s allegedly corrupt behavior.” Hardy Decl., Ex. A.

(emphasis added).

Perhaps because of the weakness of the first argument, or out of recognition that the only

public interest cognizable under FOIA is in agency action, Plaintiff proposes a second public

interest to be served by disclosure of the requested records: “shed[ding] 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.” Hardy Decl., Ex. A. This second argument is

equally unconvincing. Oblique references to information “open[ing] up government action to


20

the light of public scrutiny” have repeatedly been found insufficient, see e.g., Judicial Watch,

Inc. v. Dep’t of Homeland Sec., 736 F. Supp. 2d 202, 211 (D.D.C. 2010), and “a mere desire to

review how an agency is doing its job, coupled with allegations that it is not, does not create a

public interest sufficient to override the privacy interests protected by Exemption 7(C).”

McCutchen v. U.S. Dep’t of Health & Human Servs., 30 F.3d 183, 188 (D.C. Cir. 1994); see also

Favish, 541 U.S. at 174.

Further, to the extent that CREW contends that defendant’s decision not to prosecute Mr.

DeLay “despite [his] apparent malfeasance,” Hardy Decl., Ex. E, constitutes agency misconduct

or demonstrates that the Department of Justice acted negligently or improperly, Plaintiff’s

argument is similarly unavailing. “Where there is a privacy interest protected by Exemption

7(C) and the public interest being asserted is to show that responsible officials acted negligently

or otherwise improperly in the performance of their duties, the requester must establish more

than a bare suspicion in order to obtain disclosure. Rather, the requester must produce evidence

that would warrant a belief by a reasonable person that the alleged government impropriety

might have occurred.” Favish, 541 U.S. at 174 (withholding autopsy photos of former public

official). The D.C. Circuit has required, moreover, that when “governmental misconduct is

alleged as the justification for disclosure, the public interest is insubstantial unless the requester

puts forward compelling evidence that the agency denying the FOIA request is engaged in illegal

activity and shows that the information sought is necessary in order to confirm or refute that

evidence.” McCutchen, 30 F.3d at 189 (citing Davis v. U.S. Dep’t of Justice, 968 F.2d at 1282);

see also SafeCard Servs., 926 F.2d at 1205-06. Plaintiff has made no such showing here and


21

thus has failed to meet its burden. Hardy Decl. ¶ 21; Ellis Decl. ¶ 33.5

C. FBI and CRM Appropriately Withheld All Responsive Documents Absent a Privacy Waiver or Proof of Significant Public Interest

An unsupported

allegation that a prosecutor has engaged in wrongdoing merely by exercising his or her

prosecutorial discretion not to prosecute cannot be sufficient. Otherwise, all prosecutorial

charging decisions would be tantamount to evidence of wrongdoing, which surely is not the case.

See, e.g., Fund for Constitutional Gov’t, 656 F.2d at 863 (affirming withholding of documents

after noting that “the decision to prosecute an individual for a crime is one typically entrusted

solely to the prosecutor’s discretion and rarely subject to judicial review or public scrutiny”).

As demonstrated above, Plaintiff failed to show a cognizable public interest to outweigh

Mr. DeLay’s privacy interest, and FBI and CRM appropriately have categorically withheld all

responsive records pursuant to Exemptions 6 and 7(C). Where, as here, there is a showing of an

unwarranted invasion of privacy, the law of this Circuit supports categorically withholding

requested documents. The Supreme Court has held that an agency can properly assert a

categorical exemption based on privacy interests, see Reporters Comm., 489 U.S. 749, and “[t]he

D. C. Circuit has consistently held that exemption 7(C) protects the privacy interests of all

persons mentioned in law enforcement records, including investigators, suspects, witnesses, and

informants . . . and has determined that such third-party information is ‘categorically exempt’

from disclosure under exemption 7(C), in the absence of an overriding public interest in its

5 While some cases appear to define “public interest” as a general interest in government action, rather than a specific interest in agency misconduct, most such cases were decided before the Supreme Court Reporters Committee decision and before the D.C. Circuit’s Quiñon ruling. See, e.g., Stern v. FBI, 737 F.2d 84 (D.C. Cir. 1984); Common Cause v. Nat’l Archives & Records Serv., 628 F.2d 179 (D.C. Cir. 1980). In other cases, the holdings make clear that, despite the courts’ references to a general interest in government action, their rulings are in fact based on a “public interest” in an agency’s conduct. see, e.g., Kimberlin v. Dep’t of Justice, 139 F.3d 944, (D.C. Cir. 1998) (interest in the conduct of an AUSA because it reflects the agency’s conduct).


22

disclosure.” Lewis v. U.S. Dep’t of Justice, 609 F. Supp. 2d 80, 84 (D.D.C. 2009) (citing

Schrecker, 349 F.3d at 661 and Nation Magazine, 71 F.3d at 896 (emphasis added)).

As a result, courts have repeatedly upheld as reasonable the practices employed by the

FBI and CRM, whereby an agency generally will categorically withhold files relating to a third-

party unless the requester identifies an overriding public interest in disclosure, or submits proof

of death or a privacy waiver. See, e.g., Oguaju, 288 F.3d at 451; Lewis, 609 F. Supp. 2d at 85

(absent a showing that release of third-party records would not constitute an unwarranted

invasion of privacy, “whether [EOUSA] actually searched for [the] records . . . is immaterial . . .

because that refusal deprived [plaintiff] of nothing to which he is entitled”) (internal quotes

omitted); Fischer v. U.S. Dep’t of Justice, 596 F. Supp. 2d 34, 47 (D.D.C. 2009) (“the FBI was

justified in refusing to address [a] plaintiff’s request for third-party information”).6

The acknowledgment of an investigation and/or responsive information, as in this case,

see supra n.2,7

6 FBI’s and CRM’s procedures for processing FOIA requests for third-parties are also in accord with numerous other cases in this Circuit. See, e.g., Beck, 997 F.2d at 1492 (upholding Office of Professional Responsibility’s “policy neither to confirm not deny the existence of records pertaining to individuals except” “either (1) when those individuals signed a waiver of their privacy rights or (2) when some set of compelling circumstances made clear that the release of the records would not constitute an invasion of privacy”); Barbosa v. DEA, 541 F. Supp. 2d 108, 112 (D.D.C. 2008) (upholding DEA’s refusal to confirm or deny the existence of records in response to plaintiff’s request for third-party information in the absence of a privacy waiver, proof of death or “demonstrat[ion] that an overriding public interest warrants disclosure”).

is not a bar to such withholding. Even in the wake of such acknowledgements,

courts in this Circuit have approved withholding documents in their entirety under policies like

those invoked by the FBI and CRM here. See, e.g., Richardson v. U.S. Dep’t of Justice, 730 F.

Supp. 2d 225, 235-37 (D.D.C. 2010) (“although ‘the FBI acknowledged the existence of

7 Because the only acknowledged investigation here is the broad, widespread investigation into illegal lobbying activities of Jack Abramoff and others, and nothing about Tom DeLay’s role in this investigation has been acknowledged, revealing any information about responsive documents in an agency’s possession would unduly violate Mr. DeLay’s privacy rights.


23

responsive information’” the Court upheld the FBI’s determination that “‘it should withhold the

documents in full because revealing any details from these documents would result in the

violation of [privacy] rights of numerous third party individuals . . . absent a showing that

release of the information about the third parties . . . [would] further [] the public interest in the

FBI’s performance of its duties.”); Founding Church of Scientology of Washington, D.C., Inc. v.

U.S. Marshals Serv., 516 F. Supp. 151, 155 (D.D.C. 1980) (approving withholding of entire FBI

Investigation Report, “the disclosure of which would constitute an unwarranted invasion of

personal privacy”); Kimberlin, 139 F.3d 944; Rushford v. Civiletti, 485 F. Supp. 477 (D.D.C.

1980).

In light of the foregoing, this Court should uphold the FBI and CRM’s categorical

withholding of any responsive information, consistent with other courts that have looked at this

issue, and enter judgment in favor of Defendant.

II. THE FBI AND CRM CONDUCTED SEARCHES Because Defendant components properly withheld any responsive documents under the

policies described above, they were not required to search for any responsive documents. See

Lewis, 609 F. Supp. 2d at 85 (absent a showing that release of third-party records would not

constitute an unwarranted invasion of privacy, “whether [EOUSA] actually searched for the

records is immaterial . . . because that refusal deprived [plaintiff] of nothing to which he is

entitled”) (internal quotes omitted) (emphasis in the original). Nevertheless, because the broad

investigation was acknowledged, both the FBI and Criminal Division searched for and reviewed

potentially responsive documents. The Components determined that any responsive documents


24

should also be withheld under numerous other FOIA exemptions, including Exemption 7(A).8

A. The FBI’s Search

Hardy Decl. ¶ 28, 35; Ellis Decl. ¶ 16, 41-42, 51.

As described in the Declaration of the Section Chief of the FBI’s Record/Information

Dissemination Section (“RIDS”)’s Record Management Division (“RMD”), David M. Hardy

(the “Hardy Declaration”), the FBI utilized its Automated Case Support System (“ACS”), the

mechanism it uses to search the FBI’s Central Records System (“CRS”) to identify and review

all “documents in main files and cross-reference serials in the CRS which it was able to identify

by virtue of the fact that they were indexed under [Mr.] DeLay’s name.” Hardy Decl. ¶ 15, 24.

RIDS’s ACS search identified mentions of Mr. DeLay in files related to the lobbying

investigation of Jack Abramoff, including, but not limited to, other files in the Washington Field

Office and files in the New York Field Office, Houston Field Office, and San Antonio Field

Office. Id. ¶ 24. RIDS staff reviewed these documents and determined that most of the material

therein was exempt from disclosure and that no non-exempt material therein was segregable. Id.

FBI, therefore, withheld these documents in their entirety. Id. The steps that the FBI took to

identify responsive records, as documented in detail in the Hardy declaration, were tailored to the

particular request, and targeted those sections and individuals within the FBI that would be

expected to have responsive records.9

B. CRM’s Search

8 Generally, to withhold documents based on FOIA exemptions, an agency must make “a

good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). A lesser showing is required to withhold documents pursuant to categorical exemptions. “[A]ffidavits that explain in reasonable detail the scope and method of the search conducted . . . will suffice to demonstrate compliance with the obligations imposed by the FOIA.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982).


25

As described in the attached Ellis Declaration, the Criminal Division’s search was

reasonably calculated to uncover all documents responsive to CREW’s request. Shortly after

receiving clarification of the request from CREW, the Criminal Division initiated its search. See

Ellis Decl. ¶ 13.10 Personnel from the Public Integrity (PIN) and Fraud (FRD) sections of CRM

who are familiar with their sections’ records and with the relevant investigation conducted

systemic searches for responsive records. Id. ¶ 20. Attorneys from PIN, the lead CRM section

on cases related to the lobbying investigation, conducted a document-by-document search of the

official lobbying investigation case file for the term “DeLay” and for references to Tom DeLay

in prosecution memoranda and investigative reports.11

9 Thus, the search was adequate to assert the exemptions relied upon here.

Id. “[D]ue to their familiarity with the

case, [these attorneys] were aware of particular memoranda/reports that would likely refer to Mr.

DeLay, and so they specifically looked for and reviewed those items for responsiveness.” Id.

PIN personnel also searched electronic copies of summaries of witness interviews from this

investigation using the term “DeLay.” Id. FRD personnel, including an attorney who had

worked on the lobbying case, also searched a filing cabinet that contained the hard copy records

from the case for the term “DeLay” and for other references to Tom DeLay. Id. Additionally,

10 CRM’s search yielded several responsive documents that originated from other agencies, and thus were referred to those components/agencies for processing. Ellis Decl. ¶ 52-55; see also 28 C.F.R. § 16.4(c)(2) (“Ordinarily, the component or agency that originated a record will be presumed to be best able to determine whether to disclosure it.”). The referred messages are being processed by those components and CRM is working with those components to facilitate expeditious responses. Ellis Decl. ¶ 57. The arguments for categorically withholding all requested documents pursuant to Exemptions 6 and 7(C) pertain equally to these referral documents. It is also likely that other Exemptions apply to these documents but, pursuant to the Joint Scheduling Statement in this case, Defendant does not address those Exemptions here. 11 Although Plaintiff’s request also sought FBI 302 reports, the parties agreed that CRM need not search for those reports, which are prepared by the FBI, because Plaintiff had also submitted a FOIA request to the FBI for those records. Ellis Decl. ¶ 21.


26

personnel from CRM’s Information Technology Management (ITM) office, in consultation with

FRD personnel, conducted an electronic search of the accounts and network folders of FRD

attorneys12 assigned to the case using the terms “Tom DeLay” and “Thomas DeLay.” Id.

Finally, CRM’s FOIA/Privacy Act Unit searched CRM’s Central Criminal Division Index File

for the term “DeLay.” Id. This search did not reveal any additional records responsive to

Plaintiff’s request. Id. These searches were tailored to the particular request, and targeted those

sections and individuals within CRM that would be expected to have responsive records. 13

III. THE FBI AND CRM HAVE PROPERLY WITHHELD RECORDS UNDER FOIA EXEMPTION 7(A)

Exemption 7(A) of FOIA permits the withholding of (1) “records or information”; (2)

“compiled for law enforcement purposes”; (3) the disclosure of which “could reasonably be

expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7). Congress enacted

Exemption 7(A) because it “recognized that law enforcement agencies had legitimate needs to

keep certain records confidential, lest the agencies be hindered in their investigations or placed at

a disadvantage when it came time to present their cases” in court. John Doe Agency, 493 U.S. at

156 (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978)). To satisfy its

burden of justifying the applicability of this exemption, the government need only demonstrate

that (1) a law enforcement proceeding is pending or prospective, and (2) the release of the

12 Three FRD attorneys worked on the investigation, two of whom have since left CRM. ITM was able to search the electronic records of one former attorney by restoring back up tapes, but these tapes did not extend far enough into the past to search the records of the other departed attorney. Ellis Decl. ¶ 20. 13 The steps that CRM took to identify responsive records, as documented in detail in the Ellis declaration, therefore, were adequate to assert the Exemptions relied upon here.


27

information could reasonably be expected to cause some articulable harm to the proceeding. See

Robbins Tire & Rubber Co., 437 U.S. at 224.14

Courts have long accepted that Congress intended Exemption 7(A) to apply whenever the

government’s case could be harmed by premature release of evidence or information, or when

disclosure could impede an ongoing enforcement proceeding, including through the appeal of

those proceedings, or pending sentencing. See, e.g., Robbins Tire & Rubber Co., 437 U.S. at 232

(“[T]he release of information in investigatory files prior to the completion of an actual,

contemplated enforcement proceeding was precisely the kind of interference that Congress

continued to want to protect against.”); Ctr. for Nat’l Sec. Studies, 331 F.3d at 926 (“Exemption

7(A) does not require a presently pending ‘enforcement proceeding’;” its sufficient that ongoing

investigations are likely to lead to such proceedings); Swan v. SEC, 96 F.3d 498, 500 (D.C. Cir.

1996) (documents exempt under 7(A) where disclosure “could reveal much about the focus and

scope of the Commission’s investigation”); Mendoza v. DEA, 465 F. Supp. 2d 5, 11 (D.D.C.

2006) (“Exemption 7(A) is properly applied to criminal investigative files of an ongoing criminal

investigation”); Timken Co. v. U.S. Customs Serv., 531 F. Supp. 194 (D.D.C. 1981) (Exemption

7(A) remains applicable as long as determination could be appealed).

The government’s burden in demonstrating interference with law enforcement

proceedings under Exemption 7(A) has been significantly relaxed by Congress. Section

552(b)(7)(A) originally provided for the withholding of information that “would interfere with

enforcement proceedings,” but the Freedom of Information Reform Act of 1986 amended that

language and replaced it with the phrase “could reasonably be expected to interfere with”

14 An agency relying on exemption 7(A) must also show that the records are “compiled for law enforcement purposes.” See supra p. 10. All records requested by Plaintiff clearly are. See id. p. 12.


28

enforcement proceedings. See Pub. L. No. 99-570; Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d

309, 311 n.18 (D.C. Cir. 1988). Courts have repeatedly recognized that this change in the

statutory language substantially broadens the scope of the exemption. See, e.g., id. (district

court’s improper reliance on pre-amendment version of Exemption 7(A) “required EPA to meet

a higher standard than FOIA now demands”); Gould Inc. v. GSA, 688 F. Supp. 689, 703 n.33

(D.D.C. 1988) (“The 1986 amendments relaxed the standard . . . by requiring the government to

show merely that production of the requested records ‘could reasonably be expected’ to interfere

with enforcement proceedings.”).

Finally, it is well established that the applicability of Exemption 7(A) may be

demonstrated categorically, based on the category of records involved, rather than on a

document-by-document basis. See Robbins Tire, 437 U.S. at 236. Thus, courts have routinely

accepted affidavits in Exemption 7(A) cases that specify the distinct, generic categories of

documents at issue and the harm that could result from their release, rather than requiring

extensive, detailed itemizations of each document. See e.g., Spannaus v. Dep’t of Justice, 813

F.2d 1285, 1288 (4th Cir. 1987) (“The Supreme Court has rejected the argument that [Exemption

7(A)] requires particularized showings of interference, holding instead that the Government may

justify nondisclosure in a generic fashion.”).

A. The FBI Has Properly Invoked FOIA Exemption 7(A)

To the extent that Plaintiff has requested documents related to the broad lobbying

investigation described above, the FBI asserts that any such responsive documents are exempt

from disclosure under FOIA Exemption 7(A). These documents clearly are “records or

information” “compiled for law enforcement purposes,” as they were compiled as part of the

FBI’s wide-ranging investigation into illegal lobbying and public corruption. See supra p. 12.


29

The investigation is described in the Hardy Decl. at ¶¶ 22-23, and relates to Jack Abramoff and

others who have pled guilty to multiple charges related to corruptly providing things of value to

public officials. Hardy Decl. ¶ 23. The investigation is open and ongoing. Id. ¶ 23, 29. There

are several outstanding convictions and sentencing proceedings related to this investigation that

have not yet been completed. Id. These include, but are not limited to, the sentencing hearings

of Tony Rudy, Todd Boulanger, and Kevin Ring. Id. ¶ 29.

The FBI reviewed the responsive records and determined that any information released at

this juncture has the potential of jeopardizing the ongoing investigation and prosecutorial efforts.

Id. Specifically, the FBI is withholding the following categories of documents because releasing

them could reasonably be expected to interfere with enforcement proceedings: Investigation

Reports, Witness Statements and FBI-302s (or “FD-302s”). The release of any of these

categories of information could cause harm to the ongoing investigation because once documents

are released, they are in the public domain and could reach individuals who remain under

investigation, who could use the released information to their advantage. Id. ¶ 31. Among other

potential risks, identifying potential witnesses could cause possible harm to, or intimidation of,

these witnesses, and releasing information about the investigation could be used to counteract

evidence developed by investigators. Id.

1. FBI 302 and Witness Statements

Because of the aforementioned harms, the FBI is withholding FD-302s which contain

detailed descriptions of names, addresses, and telephone numbers of witnesses and other third

parties; information, leads and other valuable investigative information supplied by various

sources; and information regarding forensic analysis, grand jury proffer and immunity


30

statements, and information exchanged between the FBI and other governmental agencies. Id. ¶

35.

2. Investigative Reports

Also because of the aforementioned harms, the FBI is withholding investigative

summaries and reports on various aspects of the investigation. Hardy Decl. ¶ 40. The FBI is

also withholding reports analyzing evidence, and communications reporting these analyses to

various agencies, either to apprise them of the progress of the investigation or to elicit their

assistance in handling investigative leads. Id.

B. The Criminal Division Has Properly Invoked Exemption 7(A)

The Criminal Division asserts Exemption 7(A) to protect legal memoranda and

summaries of witness statements.15

15 The Senate conducted witness interviews and provided them to CRM. Ellis Decl. ¶ 22. As such, they are also being withheld because they are congressional records that are not subject to FOIA’s disclosure obligations. See United We Stand Am., Inc. v. IRS, 359 F.3d 59, 602 (D.C. Cir. 2004) (documents are not agency records unless they are (1) created or obtained by an agency and (2) in the agency’s control; and an agency’s control is demonstrated by “contemporaneous and specific instructions from [Congress] to the agencies limiting either the use or disclosure of the documents”) (citing Paisley v. CIA, 712 F.2d 686, 694 (D.C. Cir. 1983), vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984) (per curiam)). That the Senate only provided the documents pursuant to a Senate Resolution, S. Res. 520 (109th Cong.), and in that resolution limited the purposes for which these documents could be used by the Department of Justice, evidences Congress’ intent to “control” the documents. This “control” establishes that the documents are congressional records, which are exempt from FOIA’s disclosure obligations.

Ellis Decl. ¶ 41. There can be no dispute that such

documents are “records or information” “compiled for law enforcement purposes.” See supra p.

12. The documents were compiled during the government’s wide-reaching investigation of

lobbying activities, and for prosecutions resulting from that investigation that involved criminal

offenses such as fraud, bribery of public officials and tax evasion. Id. ¶ 40. Many individuals

have been charged and prosecuted in connection with that investigation, and some have pled


31

guilty. Id. ¶ 39. The investigation remains open and litigation related to at least four

prosecutions is pending. Id. n.3.

As a result, disclosure of the requested documents could reasonably be expected to

interfere with ongoing enforcement proceedings. Id. ¶ 41. Premature release of the requested

documents could adversely impact the government’s on-going enforcement proceedings by

prejudicing future testimony of witnesses in the pending investigation and any pending or

prospective prosecutions; discouraging individuals from assisting the government for fear that

their assistance may be publicly disclosed (thus subjecting them to possible harassment and

embarrassment); or tipping off individuals who are or may be identified as investigative targets.

Id. The foregoing consequences would significantly hamper the government’s ability to gather

evidence and identify/pursue wrongdoers in its pending investigation. Similarly, disclosure of

the government’s analysis of evidence, testimony, and other aspects of the case could impact the

government’s investigation and/or any future prosecutions by prematurely revealing

investigators’/prosecutors’ thoughts and strategies. Id. For these reasons, CRM has relied on

Exemption 7(A) to withhold the prosecution memoranda and witness statements.

While Plaintiff has proposed that Exemption 7(A) does not apply here because Tom

DeLay publicly stated that DOJ had closed the investigation into his conduct, see Ellis Decl., Ex.

6, DOJ has never made such a pronouncement, nor has it ever even acknowledged a specific

investigation into Mr. DeLay’s conduct. See Id. n.2. Rather, both the FBI and CRM have

declared that any responsive documents relate to the afore-described wide-reaching lobbying

investigation, which is ongoing. Hardy Decl. ¶ 28-29; Ellis Decl. ¶ 39, 41. Accordingly, the FBI

and CRM have properly applied Exemption 7(A).

IV. THE FBI AND CRM HAVE PROPERLY INVOKED FOIA EXEMPTIONS 2, 3, 5, 6, 7(C), 7(D), AND 7(E)


32

While the FBI and CRM have properly asserted that any responsive documents are

categorically exempt from disclosure under Exemptions 6, 7(C), and 7(A), see supra, the

components assert that other FOIA exemptions are also applicable to these documents.16

A. The FBI Has Properly Invoked FOIA Exemption 2

Information that is “related solely to the internal personnel rules and practices of an

agency” is exempt from disclosure pursuant to Exemption 2. 5 U.S.C. § 552(b)(2). Exemption 2

applies to materials that both relate to an agency’s “rules and practices dealing with employee

relations or human resources” and contain “information [that is] ‘internal’; that is, the agency

must typically keep the records to itself for its own use.” Milner v. Dep’t of Navy, No. 09-1163,

2011 WL 767699, at *5 n.4 (U.S. Mar. 7, 2011) (quoting 5 U.S.C. § 552(b)(2)). This exemption

has been held to protect “trivial administrative matters of no genuine public interest.” Elliott v.

U.S. Dep’t of Agric., 596 F.3d 842, 847 (D.C. Cir. 2010) (internal quotations omitted); Rose, 425

U.S. at 365.

In this case, to the extent that Plaintiff has requested documents related to the broad

lobbying investigation described above, the FBI would invoke Exemption 2 to protect secure and

nonsecure internal telephone numbers and secure internal facsimile numbers of FBI personnel.

Hardy Decl. ¶ 44. As explained in the Hardy Declaration, such information relates to personnel

matters and disclosure of such contact information could subject these employees to harassing

telephone calls or faxes that could disrupt official business. Id. ¶ 45. Moreover, the phone

numbers and facsimile numbers that have been withheld are related solely to the internal

personnel of an agency. Id. Courts have repeatedly held that government telephone numbers and

16 Frequently, in cases involving categorical withholdings, agencies asserting categorical exemptions also discuss other, non-categorical exemptions that justify withholding responsive documents. See, e.g. Feinman v. CIA, D.D.C. Civ. No. 08-02188 (Dockets No. 38).


33

other contact information may be withheld pursuant to Exemption 2 under such circumstances.

See, e.g., Antonelli v. Fed. Bureau of Prisons, 569 F. Supp. 2d 61, 65 (D.D.C. 2008); Miller v.

Dep’t of Justice, 562 F. Supp. 2d 82, 110 (D.D.C. 2008).17

B. The FBI and CRM Have Properly Invoked FOIA Exemption 3

Accordingly, the FBI has properly

withheld this information pursuant to Exemption 2. In all circumstances in which the FBI has

invoked Exemption 2, the FBI also has asserted Exemption 6 as an additional basis for

withholding the information. See infra Section IV.D.

Exemption 3 incorporates nondisclosure provisions contained in other federal statutes. 5

U.S.C. § 552(b)(3); U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S.

749, 755 (1989). Exemption 3 applies to matters “specifically exempted from disclosure by

statute . . . if that such statute (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.” 5 U.S.C. § 552(b)(3). Under Exemption

3, judicial review is limited to whether (1) the withholding statute qualifies as an Exemption 3

statute, and (2) the records fall within the statute’s scope. CIA v. Sims, 471 U.S. 159, 167 (1985);

Fitzgibbon, 911 F.2d at 761.

Evaluating whether documents are properly withheld under Exemption 3 presents

considerations “distinct and apart from the other eight exemptions.” Fitzgibbon, 911 F.2d at 761

(quoting Ass’n of Retired R.R. Workers v. U.S. R.R. Ret. Bd., 830 F.2d 331, 336 (D.C. Cir.

17 See also Elliott v. U.S. Dep’t of Agric., 596 F. 3d 842, 847 (D.C. Cir. 2010) (quoting Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C. Cir. 1981) (en banc); Schiller v. Nat’l Labor Relations Bd., 964 F.2d 1205, 1207 (D.C. Cir. 1992); Roth v. U.S. Dep’t of Justice, 656 F. Supp. 2d 153, 160 (D.D.C. 2009) (quoting Crooker). As the Supreme Court explained, under its holding in Milner, 131 S. Ct. 1259, 2011 WL 767699, at *5, records that commonly fall within what was formerly referred to as the “Low 2 Exemption” are exempt from disclosure


34

1987)). When Congress has enacted statutes that particularly identify certain categories of

information that are exempt from public disclosure notwithstanding the requirements of FOIA,

Congress makes “manifest” its intent to require the withholding of documents falling within the

terms of those statutes. Fitzgibbon, 911 F.2d at 762. Thus, “‘Exemption 3 differs from other

FOIA exemptions in that its applicability depends less on the detailed factual contents of specific

documents; the sole issue for decision is the existence of a relevant statute and the inclusion of

withheld material within the statute’s coverage.’” Fitzgibbon, 911 F.2d at 761-62 (quoting Ass’n

of Retired R.R. Workers, 830 F.2d at 336).

Exemption 3 is often asserted in conjunction with Rule 6(e) of the Federal Rules of

Criminal Procedure to withhold Federal Grand Jury information. See, e.g. Heggestad v. U.S.

Dep’t of Justice, 182 F. Supp. 2d 1 (D.D.C. 2000). “[R]ule 6(e) embodies a broad, sweeping

policy of preserving the secrecy of grand jury material regardless of the substance in which the

material is contained.” Iglesias v. CIA, 525 F. Supp. 547, 556 (D.D.C. 1981).

1. The FBI Has Properly Invoked FOIA Exemption 3

In this case, to the extent that Plaintiff has requested documents related to the broad

lobbying investigation described above, the FBI would assert Exemption 3 in conjunction with

Rule 6(e) of the Federal Rules of Criminal Procedure to withhold any Federal Grand Jury

information. Specifically, the FBI would withhold information which explicitly discloses matters

that would occur before a Federal Grand Jury, including information contained in FD-302s that

identifies specific records that may be subpoenaed by a Federal Grand Jury, names of potential

grand jury witnesses and interview statements pertaining to proffer agreements and immunity

statements, which could be used as evidence before a Federal Grand Jury. Hardy Decl. ¶ 36, 47.

under Exemption 2. Therefore, caselaw upholding invocations of “Low 2” that predates the


35

Any such disclosure would clearly violate the secrecy of grand jury proceedings and could reveal

the inner workings of any federal grand juries that may have been convened to consider the

myriad of charges considered in the lobbying investigation. Id. ¶ 50.

2. CRM Has Properly Invoked FOIA Exemption 3

The Criminal Division would rely upon Rule 6(e) of the Federal Rules of Criminal

Procedure to withhold responsive portions of the memorandum that would reveal matters

occurring before a grand jury, including grand jury testimony, the identities of grand jury

witnesses, and/or records subpoenaed by the grand jury. Id. ¶ 51.

C. CRM Has Properly Withheld Records Pursuant to FOIA Exemption 5

CRM would properly invoke FOIA’s Exemption 5 to withhold prosecution memoranda

related to the afore-described lobbying investigation. Ellis Decl. ¶ 42. Exemption 5 protects

from mandatory disclosure “inter-agency or intra-agency memorandums or letters which would

not be available by law to a party . . . in litigation with the agency.” 5 U.S.C. § 552(b)(5). The

exemption ensures that members of the public cannot obtain through FOIA what they could not

ordinarily obtain through discovery in a lawsuit against the agency, NLRB v. Sears, Roebuck &

Co., 421 U.S. 132, 149 (1975), and incorporates the privileges available to an agency in civil

litigation, including, as applicable here, the deliberative process and work-product privileges. See

Loving v. U.S. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008); Baker & Hostetler LLP v. U.S.

Dep’t of Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006);

The deliberative-process privilege exempts from mandatory disclosure documents that

are intra-agency and reflect pre-decisional agency deliberations. See NLRB, 421 U.S. at 150-52;

Wolfe v. Dep’t of Health & Human Servs., 839 F.2d 768, 773-74 (D.C. Cir. 1988) (en banc). The

Supreme Court’s decision in Milner remains in effect.


36

privilege is based on the recognition that public disclosure of pre-decisional, deliberative

documents would harm the quality of agency decision making. Id. Documents falling within the

deliberative-process privilege include those “reflecting advisory opinions, recommendations and

deliberations comprising part of a process by which governmental decisions and policies are

formulated.” NLRB, 421 U.S. at 150 (citation omitted). An agency record must satisfy three

conditions to qualify for the deliberative process privilege. It must be (1) “inter-agency or intra-

agency,” 5 U.S.C. § 552(b)(5); DOI v. Klamath, 532 U.S. 1, 8 (2001), (2) “predecisional,” and

(3) “deliberative,” In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (citations omitted). “To

establish that a document is predecisional, the agency need not point to an agency final decision,

but merely establish what deliberative process is involved, and the role that the documents at

issue played in that process.” Judicial Watch v. Export-Import Bank, 108 F. Supp. 2d 19, 35

(D.D.C. 2000) (citation omitted).

“[U]nder Exemption 5, attorney work product is exempt from mandatory disclosure.”

FTC v. Grolier, 462 U.S. 19, 28 (1983). The Supreme Court articulated that this is a categorical

rule, “without regard to the status of the litigation for which it was prepared.” Id. The work

product privilege protects such items as interviews, memoranda, correspondence, mental

impressions, and personal beliefs prepared or developed by an attorney in anticipation of

litigation. See Hickman v. Taylor, 329 U.S. 495 (1947); Heggestad, 182 F. Supp. 2d 1. For the

purposes of this privilege, litigation is anticipated when the government is investigating specific

wrongdoing in an attempt to gather evidence and build a case against a suspected wrongdoer.

SafeCard Servs., 926 F.2d at 1202. Litigation need not come to fruition for the privilege to

attach, see Heggestad, 182 F. Supp. 2d at 8, and the privilege protects factual materials, in

addition to attorneys’ analyses. Judicial Watch v. U.S. Dep’t of Justice, 432 F.3d 366, 371 (D.C.


37

Cir. 2005). Memoranda recommending prosecution, as well as declination memoranda, have

consistently been withheld under both the deliberative process and work product prongs of FOIA

Exemption 5. See, e.g., Heggestad, 182 F. Supp. 2d 1.

Here, memoranda regarding prosecutorial decisions related to the lobbying investigation

fall within the deliberative process privilege and constitute attorney work products and thus

CRM would withhold these documents under Exemption 5, in addition to the exemptions

asserted above. Ellis Decl. ¶ 42-43. “These memoranda were prepared by Department attorneys

and submitted for review and approval by Department officials.” Id. ¶ 43. “They were not

shared outside the Department or Executive Branch, and thus are inter- or intra-agency

documents.” Id.

These inter- or intra-agency documents were appropriately withheld because they each

preceded the final decisions about which they pertained – the decision whether to prosecute

particular individuals. Ellis Decl. ¶ 48. The memoranda were prepared by trial attorneys and

submitted to higher-level officials to assist the officials in making prosecutorial decisions. Id.

The memoranda represent the authoring trial attorneys’ distillation of facts, legal analyses,

opinions and recommendations about whether to prosecute certain individuals, and not the

agency’s final decision about whether to do so. Id. As such, these records play a direct part in

the agency’s deliberative process about the potential prosecution of investigated individuals, and

CRM would appropriately withhold the records pursuant to the deliberative process privilege. Id.

CRM would also withhold these documents under the independent, but overlapping,

attorney work product privilege. Id. ¶ 44-45. The memoranda were compiled as part of an

investigation during which the government was attempting to build cases against suspected

wrongdoers, and the memoranda reflect the authoring trial attorneys’ sorting and assembling of


38

factual information, as well as their legal analyses and recommendations about whether to

prosecute numerous individuals. Id. ¶ 45. Therefore, they fall squarely within the scope of the

attorney work product privilege.

D. The FBI and CRM Have Properly Invoked FOIA Exemptions 6 and 7(C)18

As described above, U.S.C. § 552(b)(6) exempts from disclosure “personnel and medical

files and similar files when the disclosure of such information would constitute a clearly

unwarranted invasion of personal privacy” and 5 U.S.C. § 552(b)(7)(C) exempts from disclosure

“records or information compiled for law enforcement purposes, but only to the extent that the

production of such law enforcement records or information . . . could reasonably be expected to

constitute an unwarranted invasion of personal privacy.” An agency decides to withhold

information under these exemptions by balancing an implicated individual’s privacy interests

against the public’s interest, if any, in disclosure. See supra p. 12. As described above,

individuals have significant privacy interests in not being connected to a criminal investigation

and information is only in the “public interest” if it would shed light on the agency’s

performance of its statutory duties. See supra.

1. The FBI Has Properly Invoked FOIA Exemptions 6 and 7(C)

To the extent Plaintiff has requested documents related to the broad lobbying

investigation described above, the FBI would invoke Exemptions 6 and 7(C) to protect the

following types of information that appear in the requested types of documents: names and

identifying information of FBI agents and personnel and other government employees; names

18 As described above, pursuant to FOIA exemptions 6 and 7(C), the components are categorically withholding all documents that may be responsive to CREW’s requests because disclosing these records would violate Tom DeLay and others’ privacy rights. See supra. Even if all responsive records were not being categorically withheld, Exemptions 6 and 7(c) would still,


39

and identifying information of third-party subjects of the lobbying investigation, and names and

identifying information of third-parties who provided information to the FBI.19

a. Names and Identifying Information of FBI Agents and Personnel and Other Government Employees

FBI Special Agents and support personnel are responsible for conducting, supervising,

and/or maintaining the investigative activities reported in the responsive documents. Hardy Decl.

¶ 50. These agents and personnel have significant privacy interests in their not being publicly

associated with the lobbying investigation. For example, withholding identifying information of

these individuals will protect the FBI Special Agents from unnecessary, unofficial questioning as

to the conduct of this or other investigations. Id. Moreover, as FBI Special Agents conduct

official inquiries into various criminal and national security violation cases, they come into

contact with all strata of society, conducting searches and making arrests, both of which result in

reasonable but nonetheless serious disturbances to people. Id. It is possible for an individual

targeted by such law enforcement actions to carry a grudge which may last for years. Id. These

individuals may seek revenge on the agents and other federal employees engaged in a particular

investigation. Id. The publicity associated with the release of an agent’s identity in connection

with a particular investigation could trigger hostility towards a particular agent. Id. There is no

public interest to be served by disclosing the identities of special agents or support personnel to

the public. Thus, disclosure of this information would constitute an unwarranted invasion of their

personal privacy. Id.

at a minimum, protect from disclosure information about Mr. DeLay and other third parties contained in the responsive records. 19 All responsive records are identifiable to particular individuals and were “compiled for law enforcement purposes.” The threshold inquiries for Exemptions 6 and 7 are therefore satisfied. See supra p. 12.


40

This rationale also pertains to names and other identifying information about federal law

enforcement personnel who assisted in the lobbying investigation. Id. ¶ 51. Moreover,

disclosure of these individuals’ identities could seriously jeopardize their effectiveness in the

performance of their official duties. Id.

b. Names and Identifying Information of Third-Party Subjects of the Lobbying Investigation

The FBI has properly relied on Exemptions 6 and 7(C) to exempt from disclosure names

and/or identifying information of third-party individuals in whom the FBI had an investigative

interest in the context of the lobbying investigation. Linkage with any law enforcement

investigation carries a strong negative connotation, and releasing the identities of these

individuals to the public in the context of an FBI criminal investigation would subject them to

harassment or embarrassment, as well as undue public attention. Id. ¶ 52. There is no legitimate

public interest in release of this identifying information since it would not shed any light on the

operations and activities of the FBI in the investigation. Id.

c. Names and Identifying Information of Third-Parties Who Provided Information to the FBI

The FBI has properly relied on Exemptions 6 and 7(C) to protect names and/or

identifying information of third-party individuals who provided information to the FBI. Id. ¶ 53.

Disclosure of the identities of these third parties would have a detrimental effect on the current

and future cooperation of other individuals willing to provide information to the FBI inasmuch as

they would have little or no faith in the FBI’s ability to maintain their information in confidence.

Id. Thus, any specific information provided by these third parties that could ultimately identify

them has been protected. Id. There is no legitimate interest to be served in disclosing the

identity of these individuals. Id.


41

2. CRM Has Properly Invoked FOIA Exemptions 6 and 7(C)

CRM has appropriately invoked Exemptions 6 and 7(C) to protect from disclosure certain

information20

a. Names and Identifying Information of Witnesses and Targets

about third parties, including witnesses, targets, policemen and other individuals.

Ellis Decl. ¶ 35. The withheld information includes these individuals’ names and other

information that would identify them, such as where and for whom they worked, the positions

they held, and when and how they met or knew particular individuals. Id.

As described above, witnesses, targets and other third parties mentioned in investigative

records have substantial privacy rights that would be implicated if they were connected with

criminal investigations or prosecutions because this association could subject them to

harassment, stigma, embarrassment, and undue scrutiny. Id. ¶ 36; See also Schrecker, 349 F.3d

657 (The D.C. Circuit has “long recognized, moreover, that ‘the mention of an individual’s name

in a law enforcement file will engender comment and speculation and carries a stigmatizing

connotation’ . . . therefore, persons involved in law enforcement investigations – witnesses,

informants, and the investigating agents – ‘have a substantial interest in seeing that their

participation remains secret.’”); Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1281 (D.C. Cir.

1992) (persons involved in FBI investigations – even if they are not the subject of the

investigation – have a substantial interest in seeing that their participation remains secret”).

Plaintiff has not asserted a public interest in the disclosure of the names and identifying

information of investigation targets, witnesses, and other third parties mentioned in investigative

and prosecutorial records, and the public interest claimed in relation to information about Mr.

20 All responsive records are identifiable to particular individuals and were “compiled for law enforcement purposes.” The threshold inquiries for Exemptions 6 and 7 are therefore satisfied. See supra p. 12.


42

DeLay provides no justification for disclosure of information about these third parties. Id. ¶ 37.

Thus, CRM has appropriately withheld this information.

b. Names and Identifying Information of Police Officers

The privacy interests outlined above with respect to witnesses and investigation targets

would apply equally to police officers mentioned in investigative and prosecutorial records. Id. ¶

36. Moreover, police officers have strong privacy interests because disclosure of their identities

could subject them to harassment or annoyance in the performance of their duties or in some

instances could endanger their physical safety. Id.

Because Plaintiff has not asserted a public interest in disclosure of this information that

would outweigh the privacy interests, Id. ¶ 37, CRM has appropriately withheld the names and

identifying information of police officers and other individuals.

E. The FBI Has Properly Withheld Information Pursuant to FOIA Exemption 7(D)


investigation described above, the FBI also would properly withhold documents, the disclosure

of which could reasonably be expected to identify a confidential source, pursuant to FOIA’s

Exemption 7(D). Informants are entitled to the protections of 5 U.S.C. § 552(b)(7)(D), which

permits the withholding or redacting of law enforcement records, the release of which “could

reasonably be expected to disclose the identity of a confidential source . . . and, in the case of a

record or information compiled by a criminal law enforcement authority in the course of a

criminal investigation . . . information furnished by a confidential source.” Id. Unlike 7(C),

Exemption 7(D) requires no balancing of public and private interests. See Dow Jones & Co. v.

U.S. Dep’t of Justice, 917 F.2d 571, 575-76 (D.C. Cir. 1990).


43

A confidential source is one who “provided information under an express assurance of

confidentiality or in circumstances from which such an assurance could be reasonably inferred.”

U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 172 (1993). Thus, Exemption 7(D) applies if an

agency establishes that a source has provided information under either an express or implied

promise of confidentiality. See Williams v. FBI, 69 F.3d 1155, 1159 (D.C. Cir. 1995).

Pursuant to Exemption 7(D), the FBI would appropriately withhold identifying

information provided by, as well as the identities of, confidential sources who provided

information during the course of the lobbying investigation. Hardy Decl. ¶ 61-62. These

individual and organizational sources furnished information to the FBI with the understanding

that their identities and the information they provided would not be divulged outside the FBI. Id.

Information provided by these individuals is singular in nature and, if released, could reveal the

informant’s identity. Id. The release of a source’s identity would foreclose that individual or

organization serving as a future source of information. Id. ¶ 62. In addition, when the identity of

one source is revealed, that revelation has a chilling effect on the activities and cooperation of

other sources. Id. It is only with the understanding of complete confidentiality that the aid of

such sources can be enlisted, and only through this confidence that these sources can be

persuaded to continue providing valuable assistance in the future. Id. Thus, the FBI would

appropriately withhold identifying information provided by, as well as the identities of, these

confidential sources.

F. The FBI Has Properly Withheld Information Pursuant to FOIA Exemption 7(E)


investigation described above, FBI would properly invoke Exemption 7(E) to protect

investigation techniques and procedures. Exemption 7(E) protects from disclosure information


44

compiled for law enforcement purposes where release of the information “would disclose

techniques and procedures for law enforcement investigations or prosecutions,” or where it

would “disclose guidelines for law enforcement investigations or prosecutions if such disclosure

could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E).

Congress intended that Exemption 7(E) protect from disclosure techniques and procedures used

to prevent and protect against crimes as well as techniques and procedures used to investigate

crimes after they have been committed. See, e.g. PHE, Inc. v. U.S. Dep’t of Justice, 983 F.2d

248, 250-51 (D.C. Cir. 1993) (holding that portions of FBI manual describing patterns of

violations, investigative techniques, and sources of information available to investigators were

protected by Exemption 7(E)).

Exemption 7(E) applies even when the identity of the techniques have been disclosed, but

the manner and circumstances of the techniques are not generally known, or the disclosure of the

details could reduce or even nullify their effectiveness. See Blanton v. U.S. Dep’t of Justice, 63

F. Supp. 2d 35, 50 (D.D.C. 2009); Coleman v. FBI, 13 F. Supp. 2d 75, 83 (D.D.C. 1998).

Exemption 7(E) does not require a particular determination of harm that would result from the

records or information within its coverage; rather, the exemption protects categories of the

information described. Smith v. Bureau of Alcohol, Tobacco and Firearms, 977 F. Supp. 496,

501 (D.D.C. 1997) (“Exemption 7(E) provides categorical protection to information related to

law enforcement techniques”).

The FBI would properly invoke Exemption 7(E) to protect “procedures and techniques

used by FBI [Special Agents]” during the lobbying investigation. Hardy Decl. ¶ 64 . As

explained in Mr. Hardy’s declaration, “[r]evelation of these details could enable targets of those


45

techniques to avoid detection or develop countermeasures to circumvent the ability of the FBI to

effectively use important law enforcement techniques.” Id.

G. The FBI and CRM Have Fulfilled Their Segregability Obligations

Under FOIA, “[a]ny reasonably segregable portion of a record shall be provided to any

person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. §

552(b). Accordingly, “non-exempt portions of a document must be disclosed unless they are

inextricably intertwined with exempt portions.” Mead Data Cent., Inc. v. U.S. Dep’t of Air

Force, 566 F.2d 242, 260 (D.C. Cir. 1977). A court “may rely on government affidavits that

show with reasonable specificity why documents withheld pursuant to a valid exemption cannot

be further segregated.” Juarez v. Dep’t of Justice, 518 F.3d 54, 61 (D.C. Cir. 2008) (internal

citation omitted). “Agencies are entitled to a presumption that they complied with the obligation

to disclose reasonably segregable material.” Sussman v. U.S. Marshalls Serv., 494 F.3d 1106,

1117 (D.C. Cir. 2007).

Here, the components have relied on categorical exemptions and, therefore, there is no

non-exempt information for the components to have released. The components’ declarations

adequately specify which portions of documents are disclosable and which are allegedly exempt.

Accordingly, the agencies have met their segregability obligations.

CONCLUSION

Because the FBI and CRM have appropriately withheld the requested documents

pursuant to FOIA exemptions 2, 3, 5, 6, 7(A), 7(C), 7(D), and 7(E) and because no segregation

of non-exempt responsive material is possible, summary judgment should be granted to

Defendant.


46

Dated: August 24, 2011 Respectfully Submitted, TONY WEST Assistant Attorney General ELIZABETH J. SHAPIRO Deputy Director U.S. Department of Justice Civil Division, Federal Programs Branch /s/ Karen S. Bloom_________

KAREN S. BLOOM (DC # 499425) Trial Attorney

U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW, Room 7119 Washington, DC 20530 Phone: (202) 514-4964 Fax: (202) 616-8470 [email protected] Counsel for Defendant
