Citizens for Responsibility and Ethics in Washington v. U.S. Department of Justice
174 F. Supp. 3d 415
| D.D.C. | 2016Background
- CREW submitted FOIA requests (Oct. 19, 2010) for FBI/DOJ records relating to the investigation of Rep. Tom DeLay and related individuals/entities. The FBI initially withheld records under multiple FOIA exemptions (including 6, 7(C), 7(D), 7(E), 2, 3, and later 5 for some pages); CRM asserted Exemption 5 for prosecution memoranda.
- This Court originally granted summary judgment to DOJ, but the D.C. Circuit reversed remanding on adequacy of justification for certain withholdings (CREW v. DOJ) and directed further proceedings.
- On remand the FBI re-searched, located 328 responsive pages, released 124 pages (with redactions), and withheld 204 pages invoking Exemptions 3, 5, 6, 7(C), 7(D), and 7(E).
- Plaintiff challenged only the FBI's withholdings under Exemptions 5, 6, and 7(C). The FBI sought to withhold six pages (DeLay 123–128) under Exemption 5 as intra-agency deliberative and attorney-client material; it withheld numerous third-party and personnel names under Exemptions 6/7(C).
- The Court permitted DOJ to assert Exemption 5 notwithstanding DOJ had not explicitly invoked Exemption 5 for FBI records in the original district-court round, finding no prejudicial gamesmanship and that plaintiff did not contest Exemption 5 on the merits.
- On Exemptions 6/7(C) the Court found third parties retained substantial privacy interests, plaintiff failed to identify identical public-domain material that would waive privacy, and any incremental public interest in names did not outweigh privacy interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Exemption 5 to six pages (DeLay 123–128) | DOJ may not raise Exemption 5 for FBI material on remand; late assertion is waived | Exemption 5 applies: documents are pre-decisional/deliberative and attorney-client communications protecting internal prosecutorial deliberations and legal advice | Court allowed late assertion of Exemption 5 and, because plaintiff did not contest merits, found pages properly withheld under Exemption 5 |
| Withholding third‑party names under Exemptions 6 and 7(C) | Many third parties have been publicly linked to the broader corruption probe; their privacy interest is minimal so names should be released | Third parties (suspects, witnesses, informants) retain strong privacy interests; plaintiff has not shown identical public-domain disclosure to defeat privacy claim | Court balanced privacy vs. public interest and upheld redactions: names/identifiers withheld under Exemption 7(C) (and 6 where relevant) |
| Public-interest justification for disclosure | Releasing names would illuminate DOJ/FBI conduct, diligence, and prosecutorial decisionmaking regarding DeLay | Public interest is in agency performance, not the private associations of third parties; names alone are not highly probative of agency behavior | Court held the incremental public interest in disclosure was weak and insufficient to overcome privacy interests |
| Waiver rule (government must assert all exemptions initially) | Plaintiff argued DOJ waived Exemption 5 by not asserting it earlier for FBI records | DOJ argued exceptions to waiver rule apply and no prejudice/gamesmanship here | Court declined to rigidly enforce waiver rule, found no prejudice, and permitted DOJ to assert Exemption 5 on remand |
Key Cases Cited
- Department of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (deliberative-process privilege discussion)
- Upjohn Co. v. United States, 449 U.S. 383 (attorney-client privilege purposes)
- Reporters Committee for Freedom of the Press v. Department of Justice, 489 U.S. 749 (public-domain effect on privacy interests)
- Safecard Services, Inc. v. SEC, 926 F.2d 1197 (D.C. Cir.) (presumption of good faith for agency affidavits; probative value of identifying information)
- CREW v. Department of Justice, 746 F.3d 1082 (D.C. Cir.) (appellate remand framing public-interest inquiry into DOJ/FBI handling of DeLay investigation)