390 F.Supp.3d 499
S.D.N.Y.2019Background
- Plaintiffs The New York Times Company and reporter Kenneth P. Vogel submitted four FOIA requests to DOJ (three to the FARA Unit, one to OIG) seeking correspondence and internal records related to individuals and entities tied to 2016 campaign figures (Manafort, Gates, Flynn, related entities, HRAGIF/Prevezon) for specified periods beginning in 2015–2016.
- DOJ processed the requests, granted expedited review for two requests, located responsive records, produced limited redacted pages, and withheld a large set of records in full under FOIA Exemption 7(A) (law enforcement records whose disclosure could interfere with enforcement proceedings).
- DOJ submitted a Vaughn index and public and ex parte declarations explaining categories of withheld records (correspondence with counsel for Manafort/Gates; correspondence with Flynn/Flynn Intel; Hermitage complaint exhibits; documents related to one or more investigations; a DVD; internal DOJ emails).
- Plaintiffs challenged adequacy of descriptions, contended many investigations have been publicly disclosed (e.g., Special Counsel Mueller’s work) and argued DOJ should release segregable portions; DOJ argued disclosure could reveal investigative existence, scope, sources, and strategy and could interfere with pending or prospective enforcement.
- The Court conducted in camera review of ex parte materials, ordered DOJ to re-review records in light of public developments (including the redacted Special Counsel report), and ultimately found DOJ’s explanations sufficient and that withheld records were compiled for law enforcement purposes and properly withheld in full under Exemption 7(A).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the withheld records were "compiled for law enforcement purposes" under Exemption 7 | Plaintiffs: FARA Unit’s general law-enforcement role is insufficient; DOJ must show a rational nexus for these specific records | DOJ: Records were created/used in enforcing FARA (civil/criminal), concern operational investigatory activities and relate to pending/prospective enforcement | Held: Records were compiled for law enforcement purposes; requests directly implicated FARA Unit enforcement duties and DOJ’s declarations established nexus |
| Whether release "could reasonably be expected to interfere with enforcement proceedings" (Exemption 7(A)) | Plaintiffs: Many investigations are public; public information undermines claimed harms; DOJ must identify specific harms or produce segregable non-harmful portions | DOJ: Disclosure could reveal existence, scope, sources, timing, and strategy; could prompt flight, witness tampering, evidence destruction, or coordination; public disclosures don’t negate harms because records may relate to other unacknowledged proceedings | Held: DOJ met its burden; predictive harms are plausible and supported by declarations; recent public disclosures did not eliminate the risk of interference |
| Adequacy of Vaughn index / public description to permit meaningful judicial review | Plaintiffs: Descriptions (e.g., "internal DOJ emails", "DVD") are conclusory and prevent evaluation | DOJ: Vaughn index plus public and ex parte declarations supply sufficient detail; some specifics withheld because disclosure itself would cause harm | Held: Descriptions plus redacted/ex parte declarations were sufficiently detailed for de novo review and to trace a rational link to asserted harms |
| Segregability — whether DOJ must produce nonexempt portions of withheld records | Plaintiffs: DOJ failed to segregate; public info makes parts releasable | DOJ: No reasonably segregable information; even metadata (sender/recipient/dates) could reveal investigative details; withheld categories justified in full | Held: DOJ adequately explained why records were withheld in full under Exemption 7(A); segregability requirement satisfied by categorical justification and supporting declarations |
Key Cases Cited
- Meese v. Keene, 481 U.S. 465 (Sup. Ct.) (FARA’s purpose is public disclosure to inform government and citizens)
- Viereck v. United States, 318 U.S. 236 (Sup. Ct.) (discussion of FARA-related disclosure policy)
- Robbins Tire & Rubber Co. v. NLRB, 437 U.S. 214 (Sup. Ct.) (Exemption 7(A) protects ongoing investigations from disclosure that would hinder enforcement)
- Tax Analysts v. I.R.S., 492 U.S. 136 (Sup. Ct.) (FOIA exemptions construed narrowly; law-enforcement materials include civil and criminal matters)
- Milner v. Dep't of the Navy, 562 U.S. 562 (Sup. Ct.) (scope of law-enforcement and security-related functions)
- In re New York Times Co. to Unseal Wiretap & Search Warrant Materials, 577 F.3d 401 (2d Cir.) (balancing transparency with protection of sensitive information)
- Center for Constitutional Rights v. C.I.A., 765 F.3d 161 (2d Cir.) (agency declarations accorded a presumption of good faith in FOIA disputes)