94 F.4th 33
D.C. Cir.2024Background
- In 2012, HSBC entered into a deferred prosecution agreement with the DOJ for violations including the Bank Secrecy Act and money laundering laws, requiring an independent monitor to assess compliance.
- In 2015, the monitor prepared a report, which was submitted to U.S. and U.K. government entities and filed under seal by the DOJ.
- A prior court (EDNY) considered unsealing a redacted version but was reversed by the Second Circuit, which held the report was not a judicial document under the First Amendment.
- In 2019, Jason Leopold and BuzzFeed filed a FOIA request for the report; after no timely response, they sued for release of at least the redacted portions.
- The district court granted summary judgment to the DOJ, finding FOIA Exemption 8 applied to the entire report without adequately addressing whether any portions could be reasonably segregated and released without foreseeable harm.
- On appeal, the D.C. Circuit vacated the summary judgment and remanded, holding the DOJ did not meet its burden under the FOIA Improvement Act to show foreseeable harm from any partial disclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does FOIA Exemption 8 bar all or part of the Monitor's Report's release? | Only portions that would harm protected interests after reasonable segregation should be withheld. | All of the report is protected under Exemption 8; disclosure would foreseeably harm regulated interests. | Exemption 8 may apply, but agency must show foreseeable harm for each portion withheld. |
| Did the DOJ properly assess segregability and foreseeable harm under the FOIA Improvement Act? | DOJ did not provide sufficient evidence that partial release would cause harm; court must consider redacted release. | Declarations claim no non-exempt information exists; disclosure would chill cooperation and harm relations. | DOJ failed to meet 'focused and concrete' foreseeable harm standard; remanded for further review. |
| Are conclusory declarations sufficient to justify withholding under FOIA exemptions? | Generic, boilerplate claims cannot meet the agency's burden under FOIA. | Agency affidavits and general harms should suffice. | Conclusory statements are insufficient; agency must provide evidence and specific reasoning. |
| Is the context lost by redaction a valid basis to withhold the whole report? | Redactor's loss of context is not a legally recognized FOIA interest. | Loss of context undermines report's usefulness, justifying withholding. | Not a valid basis under FOIA; only foreseeably harmful material may be withheld. |
Key Cases Cited
- Dep't of Air Force v. Rose, 425 U.S. 352 (1976) (FOIA exemptions are construed narrowly; public access is favored)
- Reporters Committee for Freedom of the Press v. FBI, 3 F.4th 350 (D.C. Cir. 2021) (agencies must show specific, foreseeable harm to withhold under FOIA)
- Larson v. Dep’t of State, 565 F.3d 857 (D.C. Cir. 2009) (summary judgment in FOIA cases reviewed de novo)
- Gallant v. NLRB, 26 F.3d 168 (D.C. Cir. 1994) (standards for FOIA review and summary judgment)