330 F. Supp. 3d 477
D.C. Cir.2018Background
- King & Spalding (on behalf of Abiomed) submitted FOIA requests in 2016 to HHS and DOJ (Civil Division and EOUSA) seeking documents about an earlier USAO-DC investigation of Abiomed and the origin of materials provided to DOJ.
- EOUSA produced many pages but withheld 67 pages in full (51 in response to EOUSA request, 16 duplicative from Civil Division), citing Exemptions 6, 7(C), and 7(D); a supplemental release produced additional partially redacted pages.
- The withheld material was supplied to USAO-DC by a private attorney on behalf of an anonymous source; EOUSA could not confirm whether the source was an individual or an entity.
- Plaintiff challenged the adequacy of DOJ's search and the withholdings under Exemptions 6, 7(C), and 7(D); the court previously required more factual showing about the source's confidentiality.
- On renewed cross-motions, the court held that EOUSA failed to justify withholding the 67 pages in full under Exemption 7(D), but upheld redactions of names/identifying info under Exemption 7(C) (including the lawyer's name), and ordered supplemental submissions on (a) whether disclosure of the law firm would identify the lawyer, and (b) search-term details for certain email searches.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Exemption 7(D) to withhold 67 pages | Source was confidential; DOJ hasn't shown confidentiality | Material came from a confidential source and its disclosure could reveal source identity | Denied for DOJ: agency failed to show implied assurance of confidentiality under Roth/Landano factors; 67 pages must be produced (subject to 7(C) redactions) |
| Applicability of Exemption 7(C)/6 to lawyer and third‑party names | Lawyer and firm names should be disclosed; no sufficient privacy interest shown | Withholding names protects personal privacy of third parties and counsel | Granted for DOJ as to individuals: lawyer's name may be withheld under 7(C); court required more support before withholding the law‑firm name (supplemental declaration requested) |
| Segregability of responsive records | EOUSA did not adequately segregate nonexempt material | EOUSA segregated and released nonexempt portions (supplemental filings describe redactions) | EOUSA’s segregability for supplemental release is adequate; 67 pages must be produced with redactions for names/IDs only |
| Adequacy of EOUSA/USAO-DC search for responsive records (emails) | Search descriptions omit search terms and methods for several AUSAs' mailboxes | Agency described searches; argued mail archives were outside retention window | Denied without prejudice as to search adequacy: DOJ must supplement declarations to state specific search terms/methods or run renewed searches and declare details |
Key Cases Cited
- U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (U.S. 1989) (FOIA places burden on agency to sustain nondisclosure)
- Landano v. U.S. Dep't of Justice, 508 U.S. 165 (U.S. 1993) (confidential‑source inquiry requires express or implied assurance analysis)
- Labow v. U.S. Dep't of Justice, 831 F.3d 523 (D.C. Cir. 2016) (articulating Roth factors for implied confidentiality)
- Roth v. U.S. Dep't of Justice, 642 F.3d 1161 (D.C. Cir. 2011) (factors for implied assurance of confidentiality)
- Favish v. U.S. Dep't of Justice, 541 U.S. 157 (U.S. 2004) (requester must provide meaningful evidence of government impropriety to overcome privacy exemption)
- Bartko v. U.S. Dep't of Justice, 898 F.3d 51 (D.C. Cir. 2018) (privacy interest in names in investigative files; segregability presumption)
- Reporters Comm. for Freedom of Press v. FBI, 877 F.3d 399 (D.C. Cir. 2017) (FOIA search adequacy and exemptions framework)
- Oglesby v. U.S. Dep't of Army, 920 F.2d 57 (D.C. Cir. 1990) (agency affidavits must describe search terms and methods)