CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON v. UNITED STATES DEPARTMENT OF JUSTICE
No. 12-5223
United States Court of Appeals, District of Columbia Circuit
April 1, 2014
746 F.3d 1087
Taken together, the four factors suggest that Rice would have at least a debatable, if not persuasive, Sixth Amendment claim under de novo review. But in light of Rice‘s forfeiture, we can reverse only for plain error, and we cannot conclude that the Barker analysis demonstrates a “clear or obvious” constitutional error in this case. Marcus, 130 S.Ct. at 2164. Because any error was not “clear or obvious,” we need not address the other requirements for relief under plain error review.
IV
For the foregoing reasons, we reject Rice‘s Speedy Trial Act and Sixth Amendment challenges and affirm his convictions.
Steve Frank, Attorney, U.S. Department of Justice, argued the cause for the appellee. Stuart F. Delery, Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney, and Leonard Schaitman, Attorney, were on brief.
Before: HENDERSON, Circuit Judge, and EDWARDS and SENTELLE, Senior Circuit Judges.
KAREN LECRAFT HENDERSON, Circuit Judge:
In 2004, the Federal Bureau of Investigation (FBI) opened a wide-ranging public corruption investigation into the activities of former lobbyist Jack Abramoff. The investigation yielded 21 guilty pleas or convictions by jury. Two of those convicted, Tony Rudy and Michael Scanlon, once served as senior aides to Tom DeLay—the former Majority Leader of the United States House of Representatives. During the multi-year investigation, the FBI never acknowledged whether DeLay himself was a subject of inquiry. In August 2010, however, DeLay announced that the United States Department of Justice (DOJ) had informed him it had decided not to bring criminal charges against him related to the Abramoff scandal.
Shortly after DeLay‘s announcement, Citizens for Responsibility and Ethics in Washington (CREW) filed a Freedom of Information Act (FOIA) request seeking various types of documents related to the FBI‘s investigation of DeLay. After the FBI declined to produce the documents, CREW filed suit against the DOJ (the agency encompassing the FBI). The district court granted summary judgment to the DOJ, concluding that the requested documents were categorically exempt from disclosure under Exemptions 7(A) and 7(C) and that, in the alternative, portions of the requested documents were also exempt under Exemptions 3, 7(D) and 7(E). Citizens for Responsibility & Ethics in Wash. v. Dep‘t of Justice, 870 F.Supp.2d 70 (D.D.C.2012). We now reverse and remand. The DOJ has not met its burden of justifying categorical withholding under Exemption 7(A) or 7(C) and has not adequately explained the basis for withholding portions of the requested documents under Exemptions 3, 7(D) and 7(E).
I
A. Legal Framework
FOIA provides that every government agency, “upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person.”
FOIA “was enacted to facilitate public access to Government documents” and “was designed to ‘pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.‘” Dep‘t of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) (quoting Dep‘t of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)). Because of FOIA‘s “goal of broad disclosure,” the Supreme Court has “insisted that the exemptions be ‘given a narrow compass.‘” Milner v. Dep‘t of Navy, — U.S. —, 131 S.Ct. 1259, 1265, 179 L.Ed.2d 268 (2011) (quoting Dep‘t of Justice v. Tax Analysts, 492 U.S. 136, 151, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989)); accord FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982) (“FOIA exemptions are to be narrowly construed.“). FOIA‘s “limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Dep‘t of Interior v. Klamath Water Users Protective Ass‘n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (quoting Rose, 425 U.S. at 361, 96 S.Ct. 1592).
The agency bears the burden of establishing that a claimed exemption applies. Dep‘t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989); Elec. Frontier Found. v. Dep‘t of Justice, 739 F.3d 1, 7 (D.C.Cir.2014); see
At times, the FOIA litigation process threatens to reveal “the very information the agency hopes to protect” and therefore it may be necessary for the agency affidavit to contain only “brief or categorical descriptions” of the withheld information. ACLU, 710 F.3d at 432; see also Judicial Watch, 449 F.3d at 146. In such circumstances, “the government need not justify its withholdings document-by-document; it may instead do so category-of-document by category-of-document, so long as its definitions of relevant categories are sufficiently distinct to allow a court to determine whether the specific claimed exemptions are properly applied.” Gallant v. NLRB, 26 F.3d 168, 173 (D.C.Cir.1994) (quotation marks and ellipsis omitted); accord Crooker v. Bureau of Alcohol, Tobacco & Firearms, 789 F.2d 64, 67 (D.C.Cir.1986). Categorical treatment, however, may be used “[o]nly when the range of circumstances included in the category ‘characteristically support[s] an inference’ that the statutory requirements
B. Factual and Procedural Background
On October 19, 2010, after DeLay had announced that he was not going to be criminally charged as a result of the Abramoff investigation, CREW wrote to the FBI requesting
any witness statements, investigation reports, prosecution memoranda, and [FBI] 302 reports related to the FBI‘s and DOJ‘s investigation of [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.
Joint Appendix (JA) 51. Three days later, the FBI responded, stating that, because the requested records involved third parties, they were generally exempt from disclosure and could not be released absent express authorization from each third party, proof of the third party‘s death or a “clear demonstration that the public inter-est in disclosure outweighs the personal privacy interest and that significant public benefit would result from the disclosure of the requested records.” JA 107. The FBI‘s response also included the disclaimer—in FOIA terms, a “Glomar response,” see Military Audit Project v. Casey, 656 F.2d 724 (D.C.Cir.1981); Phillippi v. CIA, 655 F.2d 1325 (D.C.Cir.1981)—that the response “should not be considered an indication of whether or not records responsive to your request exist in FBI files.” JA 107. After exhausting its administrative remedies, CREW filed suit against the DOJ in district court.
The parties cross-moved for summary judgment. In support of its motion, the DOJ submitted a declaration from David Hardy, Section Chief of the Record/Information Dissemination Section, Record Management Division, of the FBI (“Hardy Declaration” or “Declaration,” reprinted at JA 18-49). The Hardy Declaration recited the FBI‘s policy of issuing a Glomar response to requests for records involving third parties. However, “[i]n light of the acknowledgment of a pending lobbying investigation related to Jack Abramoff,” it “pierced the Glomar veil and admitted the existence of records potentially responsive to plaintiff‘s request.” Hardy Decl. 31-32. It explained the methodology by which the FBI searched for responsive documents and identified two categories of responsive documents located.
The first category includes FD-302s, forms used by FBI agents “to record information which they obtain through witness interviews, . . . grand jury subpoenas, proffer agreements and immunity statements, and from other federal agencies.” Id. at 19. More specifically, FD-302s contain, in the aggregate, detailed descriptions of names, addresses, telephone numbers of witnesses and other third parties, information, leads, and
Id. at 20. The FBI‘s search for responsive documents turned up an unspecified number of FD-302s dating from June 2004 to October 2009. The second category of responsive documents, investigative materials, “includes derivative communications and reports analyzing the evidence obtained.” Id. at 21. The Hardy Declaration explained that “[a] derivative communication . . . describes (verbatim or in summary) the contents of the original evidentiary record, how it was obtained, and how it relates to the investigation.” Id. at 21-22. The Declaration did not specify how many responsive documents in this category were identified.1
The Hardy Declaration asserted that all responsive documents were categorically exempt under Exemption 7(A), see id. at 16-19, 22, and Exemptions 6 and 7(C), see id. at 24-30. It also invoked Exemptions 2, 3, 7(D) and 7(E) to withhold portions of the responsive material. Id. at 22-24, 30-31. The Declaration asserted that “due in particular to the inextricably intertwined and interrelated nature of the documents at issue here, no information is segregable and releasable at this time.” Id. at 17; accord id. at 22.
The district court agreed with the DOJ in every respect. With regard to Exemptions 6 and 7(C), the district court found that, despite his public acknowledgment of the investigation, DeLay retained a substantial privacy interest in preventing disclosure of the contents of the investigative files. Citizens for Responsibility & Ethics in Wash., 870 F.Supp.2d at 79-80. The district court found little countervailing public interest. Although it “acknowledge[d] that there may be some public interest in the investigative materials and reports,” it found that “this minimal public interest does not outweigh the substantial privacy interests of Mr. DeLay and other third parties in the contents of the documents.” Id. at 81. It therefore held that “the ‘balance . . . tips in’ favor of exemption” and the DOJ “properly categorically withheld the records pursuant to Exemptions 6 and 7(C).” Id. at 81-82 (quoting Nation Magazine, 71 F.3d at 893) (omission in district court order).
As for Exemption 7(A), the district court found that “[n]ot only is the investigation still ongoing . . . , but ‘[t]here are several outstanding convictions and sentencing proceedings . . . which have not yet been completed.‘” Id. at 82 (quoting Hardy Decl. 17). It found that disclosure of the requested records would interfere with those proceedings by identifying sources, potential witnesses and third parties under investigation, uncovering the government‘s trial strategy and notifying individuals who remained under investigation. Id. at 82. Accordingly, it held that categorical withholding was also appropriate under Exemption 7(A). Id. at 82-83.
Finally, the district court accepted the DOJ‘s alternative grounds for withholding portions of the requested records under Exemptions 2, 3, 7(D) and 7(E). See id. at 83
II
We review de novo the district court‘s grant of summary judgment. Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int‘l Boundary & Water Comm‘n, U.S.-Mex., 740 F.3d 195, 200 (D.C.Cir.2014). We first address the DOJ‘s categorical withholding claims under Exemptions 7(C) and 7(A), then briefly address the DOJ‘s claims under Exemptions 3, 7(D) and 7(E).
A. Exemption 7(C)
As noted, FOIA 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.”
Privacy Interest: DeLay has two potential privacy interests at stake. The first is his interest in avoiding the stigma of having his name associated with a criminal investigation. “[I]ndividuals have an obvious privacy interest cognizable under Exemption 7(C) in keeping secret the fact that they were subjects of a law enforcement investigation.” Nation Magazine, 71 F.3d at 894; see also People for the Ethical Treatment of Animals (PETA) v. Nat‘l Insts. of Health, No. 12-5183, 745 F.3d 535, 540-42, 2014 WL 982875, at *4 (D.C.Cir. Mar. 14, 2014); Schrecker v. Dep‘t of Justice, 349 F.3d 657, 666 (D.C.Cir.2003); Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C.Cir.1990). If a FOIA request is made for FBI investigative records regarding a particular individual, the FBI‘s mere acknowledgment that it possesses responsive records associates the individual named in the request with suspected criminal activity and therefore a Glomar response may be appropriate. See Nation Magazine, 71 F.3d at 893 (collecting cases); see also PETA, 745 F.3d at 540, 2014 WL 982875, at *3. The FBI evidently believed this was such a case when it initially issued a Glomar response to CREW‘s request. A Glomar response, however, is “permitted only when confirming or denying the existence of records would itself ‘cause harm cognizable under an FOIA exception.‘” Roth, 642 F.3d at 1178 (quoting Wolf v. CIA, 473 F.3d 370, 374 (D.C.Cir.2007)) (additional quotation marks omitted). In August 2010, DeLay made public statements confirming the fact that he had been, but was no longer, under investigation. He explained the extent of his cooperation with the investiga-
Although DeLay‘s action lessened his interest in keeping secret the fact that he was under investigation, he retained a second, distinct privacy interest in the contents of the investigative files. We made that clear in Kimberlin, noting that,3 although a prosecutor who had publicly acknowledged he was the subject of a disciplinary investigation retained little privacy interest in keeping the fact of the investigation secret, he “did not, merely by acknowledging the investigation and making a vague reference to its conclusion, waive all his interest in keeping the contents of the [disciplinary] file confidential.” 139 F.3d at 949; cf. Ray, 502 U.S. at 175-76, 112 S.Ct. 541 (although disclosure of interview summaries containing highly personal information constitutes only de minimis invasion of privacy if identities of interviewees are unknown, “the invasion of privacy becomes significant when the personal information is linked to particular interviewees“). CREW does not dispute that DeLay retains some privacy interest in the particulars of the investigation but instead contends that such interest is not sufficient to support categorical withholding. See Reply Br. of Appellant 11-12, No. 12-5223 (D.C.Cir. June 17, 2013). And although DeLay, as a public official at the time, “may have a somewhat diminished privacy interest,” public officials “‘do not surrender all rights to personal privacy when they accept a public appointment.‘” Quinon v. FBI, 86 F.3d 1222, 1230 (D.C.Cir.1996) (quoting Bast v. Dep‘t of Justice, 665 F.2d 1251, 1255 (D.C.Cir.1981)); see also Kimberlin, 139 F.3d at 949; Fund for Const. Gov‘t v. Nat‘l Archives & Records Serv., 656 F.2d 856, 865 (D.C.Cir.1981). DeLay‘s privacy interest in the contents of the investigative files is not insubstantial.
Public Interest: On the other side of the scale sits a weighty public interest in
The DOJ contends that CREW has posited no public interest and therefore categorical withholding is appropriate because “[s]omething . . . outweighs nothing every time.” Br. of Appellee 10, No. 12-5223 (D.C.Cir. May 15, 2013) (quoting Nat‘l Ass‘n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C.Cir.1989)). But there is considerably more than nothing on the public interest side of the scale. “[M]atters of substantive law enforcement policy . . . are properly the subject of public concern,” Reporters Comm., 489 U.S. at 766 n. 18, 109 S.Ct. 1468, and disclosure of the requested records would likely reveal a great deal about law enforcement policy, see Favish, 541 U.S. at 172, 124 S.Ct. 1570 (in addition to significant public interest, requester must “show the information is likely to advance that interest“). Disclosure of the FD-302s and investigative materials could shed light on how the FBI and the DOJ handle the investigation and prosecution of crimes that undermine the very foundation of our government. As the DOJ itself explained, the requested records relate to “a wide-ranging public corruption investigation as part of [the FBI‘s] ongoing efforts to root out systemic corruption within the highest levels of government.” Hardy Decl. 12. Disclosure of the records would likely reveal much about the diligence of the FBI‘s investigation and the DOJ‘s exercise of its prosecutorial discretion: whether the government had the evidence but nevertheless pulled its punches. Indeed, we have repeatedly recognized a public interest in the manner in which the DOJ carries out substantive law enforcement policy (whether or not that interest outweighs any privacy interest at stake in a given case). See, e.g., ACLU, 655 F.3d at 12-13 (public interest in DOJ‘s use of and justification for warrantless cell phone tracking); Kimberlin, 139 F.3d at 948-49 (public interest in DOJ disciplinary proceedings); Dunkelberger v. Dep‘t of Justice, 906 F.2d 779, 781 (D.C.Cir.1990) (public interest both in whether FBI agent participated in scheme to entrap public official and in manner in which agent was disciplined); Bast, 665 F.2d at 1255 (public interest in DOJ decision not to prosecute federal judge for alleged misconduct); see also Ray, 502 U.S. at 178, 112 S.Ct. 541 (public interest in “knowing whether the State Department has adequately monitored Haiti‘s compliance with its promise not to prosecute returnees“); PETA, 745 F.3d at 542-43, 544-45, 2014 WL 982875 at *6, *8 (public interest in how National Institutes of Health decides whether to investigate complaints of animal abuse and misappropriation of research funds and how it conducts investigations); Multi Ag Media LLC v. Dep‘t of Agric., 515 F.3d 1224, 1232 (D.C.Cir.2008) (public interest in determining whether Department of Agriculture “is catching cheaters and law-
That the investigation implicated a public official as prominent as the former Majority Leader of the House of Representatives further raises the stakes. See Kimberlin, 139 F.3d at 949 (court may consider “the rank of the public official involved and the seriousness of the misconduct alleged” in conducting Exemption 7(C) balancing); see also Jefferson v. Dep‘t of Justice, 284 F.3d 172, 180 (D.C.Cir.2002); Beck v. Dep‘t of Justice, 997 F.2d 1489, 1493 (D.C.Cir.1993); Stern, 737 F.2d at 93-94. Although the DOJ‘s actions in this case may reflect only one data point regarding the performance of its statutory duties, cf. Boyd v. Dep‘t of Justice, 475 F.3d 381, 388 (D.C.Cir.2007), it is a significant one: It may show whether prominent and influential public officials are subjected to the same investigative scrutiny and prosecutorial zeal as local aldermen and little-known lobbyists. We do not accept the DOJ‘s contention that there is no public interest in examining the FBI‘s investigation of, and the DOJ‘s decision not to charge, the former House Majority Leader for his alleged involvement in one of the most significant political corruption scandals in recent memory.
The DOJ‘s arguments to the contrary are unpersuasive. First, it contends that “the identity of individuals who appear in law enforcement files would virtually never be ‘very probative of an agency‘s behavior or performance’ and would serve a significant public interest only if there is compelling evidence that the agency . . . is engaged in illegal activity.” Br. of Appellee 35 (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1206 (D.C.Cir.1991)). As we have explained, however, SafeCard “is one in a long line of FOIA cases holding that disclosure of the identities of private citizens mentioned in law enforcement files constitutes an unwarranted invasion of privacy.” Nation Magazine, 71 F.3d at 896 (emphasis in original) (collecting such cases). Here, however, the DOJ does not seek to withhold only the identities of private citizens; it seeks to withhold every responsive document in toto. Although SafeCard may authorize the redaction of the names and identifying information of private citizens mentioned in law enforcement files, it does not permit an agency “to exempt from disclosure all of the material in an investigatory record solely on the grounds that the record includes some information which identifies a private citizen or provides that person‘s name and address.” Id.; see also Schrecker, 349 F.3d at 666 (explaining that SafeCard rule applies to names and identifying information); Mays v. DEA, 234 F.3d 1324, 1328 (D.C.Cir.2000) (investigative details is “a category presumably distinct from, and potentially far broader than” personal information).
Next, the DOJ leans on the United States Supreme Court‘s decision in Favish, which held that, if an Exemption 7(C) privacy interest exists, “the usual rule that the citizen need not offer a reason for requesting the information [is] inapplicable” and therefore “the exemption requires the person requesting the information to establish a sufficient reason for the disclosure.” 541 U.S. at 172, 124 S.Ct. 1570. Accordingly, in cases where “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.” Id. at 174, 124 S.Ct. 1570. Favish was such a case, see id. at 160-61, 173, 124 S.Ct. 1570, but this is not. CREW alleges no impropriety on the part of the FBI or the DOJ;4 it has nonetheless established a sufficient reason for disclosure independent of any impropriety: “‘[M]atters of substantive law enforcement policy are properly the subject of public concern,’ whether or not the policy in question is lawful.” ACLU, 655 F.3d at 14 (quoting Reporters Comm., 489 U.S. at 766 n. 18, 109 S.Ct. 1468) (ellipsis omitted).5 Whether government impropriety might be exposed in the process is beside the point. See id. (“Whether the government‘s [] policy is legal or illegal, proper or improper, is irrelevant to this case.“). There is, then, a significant public interest to be weighed.
Balancing: The DOJ contends—and the district court agreed—that the balance categorically tips in favor of nondisclosure. We think, however, that the district court drastically understated the public interest when it “acknowledge[d] that there may be some . . . minimal public interest” at stake. Citizens for Responsibility & Ethics in Wash., 870 F.Supp.2d at 81. As the foregoing discussion demonstrates, there are substantial interests on both sides of the scale. Yet a categorical approach is appropriate only if “a case fits into a genus in which the balance characteristically tips in one direction.” Reporters Comm., 489 U.S. at 776, 109 S.Ct. 1468 (emphasis added); accord Landano, 508 U.S. at 177, 113 S.Ct. 2014; Roth, 642 F.3d at 1183-84; Nation Magazine, 71 F.3d at 893. In Kimberlin, we considered whether a categorical approach was appropriate where the interests to be balanced were a prosecutor‘s right to privacy regarding the substance of disciplinary proceedings against him and the public interest in examining the DOJ‘s internal disciplinary process. 139 F.3d at 948-49. In light of the parties’ apparent agreement that a categorical approach was inappropriate, we stated that “we may assume for purposes of this opinion that the balance of interests relating to the disclosure of material in [a disciplinary] file will not so often tip toward withholding that a categorical rule against disclosure is appropriate.” Id. at 948-49. We endorsed a “case-by-case balancing” approach that considers “the rank of the public official involved and the seriousness of the misconduct alleged.” Id. at 949.
We do not hold that the requested information is not exempt under Exemption 7(C). We simply hold that a categorical rule is inappropriate here. As CREW acknowledged at argument, it is likely that some of the requested information ultimately will be exempt from disclosure. Recording of Argument 23:15. For instance, the names and identifying information of third parties contained in investigative files are presumptively exempt. Schrecker, 349 F.3d at 666; SafeCard, 926 F.2d at 1206. Much of the information sought might also be withheld under one of the exemptions discussed infra. But that does not justify the blanket withholding of all responsive documents. Nation Magazine, 71 F.3d at 896. On remand, the DOJ must attempt to make a more particularized showing as to what documents or portions thereof are exempt. The district court must then weigh what information may be withheld under Exemption 7(C) and whether any information is reasonably segregable and may be disclosed.
B. Exemption 7(A)
FOIA also 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 (A) could reasonably be expected to interfere with enforcement proceedings.”
The DOJ identifies the relevant enforcement proceedings as follows:
There are several outstanding convictions and sentencing proceedings in the lobbying investigation related to Abramoff and others which have not yet been completed. These include, but are not limited to, the sentencing hearings of Tony Rudy, Todd Boulanger and Kevin Ring. At least until the above-described cases and all related criminal investigations are completed, the FBI will consider the documents responsive to plaintiff‘s request to be in an open and pending status, as premature release of any of this information would have a harmful effect on these pending matters, which will be described in further detail below.
Hardy Decl. 17 (footnote omitted). The Declaration goes on to explain how disclosure of the requested records would interfere with these proceedings: revealing the identities of potential witnesses and sub-
The first set of proceedings does not justify withholding because the sentencing hearings—and appeals—of Rudy, Boulanger and Ring are no longer “pending or reasonably anticipated.” Exemption 7(A) is temporal in nature. Robbins Tire, 437 U.S. at 230-32, 98 S.Ct. 2311; see also North v. Walsh, 881 F.2d 1088, 1100 (D.C.Cir.1989) (“Disclosure of the information [the requester] seeks cannot interfere with parts of the enforcement proceeding already concluded.“). We therefore “require a law enforcement agency invoking the exception to show that the material withheld ‘relates to a concrete prospective law enforcement proceeding.‘” Juarez v. Dep‘t of Justice, 518 F.3d 54, 58 (D.C.Cir.2008) (quoting Bevis v. Dep‘t of State, 801 F.2d 1386, 1389 (D.C.Cir.1986)). The proceeding must remain pending at the time of our decision, not only at the time of the initial FOIA request. Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C.Cir.2007). Thus, reliance on Exemption 7(A) may become outdated when the proceeding at issue comes to a close. See Coastal States Gas Corp. v. Dep‘t of Energy, 617 F.2d 854, 870 (D.C.Cir.1980) (“There is no reason to protect yellowing documents contained in long-closed files.“); see also August v. FBI, 328 F.3d 697, 698 (D.C.Cir.2003); Maydak v. Dep‘t of Justice, 218 F.3d 760, 763-64 (D.C.Cir.2000); Senate of Puerto Rico v. Dep‘t of Justice, 823 F.2d 574, 580-81 (D.C.Cir.1987).
Since the DOJ filed its Declaration in August 2011, Rudy, Boulanger and Ring have all been sentenced. See United States v. Rudy, No. 06-cr-00082-ESH (D.D.C. April 20, 2012); United States v. Boulanger, No. 09-cr-00025-RWR (D.D.C. Oct. 14, 2011); United States v. Ring, 08-cr-00274-ESH (D.D.C. Oct. 26, 2011). Only Ring appealed and this Court affirmed his conviction more than one year ago. See United States v. Ring, 706 F.3d 460 (D.C.Cir. Jan. 25, 2013). The cases are closed—not pending or contemplated—and therefore are not proceedings with which disclosure may interfere. See Robbins Tire, 437 U.S. at 232, 98 S.Ct. 2311; North, 881 F.2d at 1100.6
The second type of proceeding, ongoing at least in August 2011, consists of “all related criminal investigations.” Hardy Decl. 17; see also id. at 13 (referring to “continuing large public corruption investigation“). The district court cited that lan-
Categorical withholding is often appropriate under Exemption 7(A). Robbins Tire, 437 U.S. at 236, 98 S.Ct. 2311 (“Congress did not intend to prevent the federal courts from determining that, with respect to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally ‘interfere with enforcement proceedings.’ “). In such a case, an agency may satisfy its burden of proof “by grouping documents in categories and offering generic reasons for withholding the documents in each category.” Maydak, 218 F.3d at 765. We have held, however, that
if it wishes to adopt the generic approach, [an agency] has a three-fold task. First, it must define its categories functionally. Second, it must conduct a document-by-document review in order to assign documents to the proper category. Finally, it must explain to the court how the release of each category would interfere with enforcement proceedings.
Bevis, 801 F.2d at 1389-90. As to the third task, although we give deference to an agency‘s predictive judgment of the harm that will result from disclosure of information, see Ctr. for Nat‘l Sec. Studies v. Dep‘t of Justice, 331 F.3d 918, 927-28 (D.C.Cir.2003), it is not sufficient for the agency to simply assert that disclosure will interfere with enforcement proceedings; “it must rather demonstrate how disclosure” will do so. Sussman, 494 F.3d at 1114; see Campbell v. Dep‘t of Health & Human Servs., 682 F.2d 256, 265 (D.C.Cir. 1982). The DOJ has made no such demonstration here.
The DOJ explains that, in August 2011, there was a wide-ranging public corruption investigation pending and that the release of the requested records could disclose to individuals under investigation the identities of potential witnesses, the content of the government‘s evidence and trial strategy and the focus of the investigation. Hardy Decl. 16, 18-19. We have often found that similar concerns justify withholding under Exemption 7(A). In the typical case, however, the requested records relate to a specific individual or entity that is the subject of the ongoing investigation, making the likelihood of interference readily apparent. See, e.g., Juarez, 518 F.3d at 58; Swan v. SEC, 96 F.3d 498, 499 (D.C.Cir.1996); Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 312 (D.C.Cir.1988);
Moreover, although the DOJ identifies two distinct categories of documents—FD-302s and investigative materials—it never explains how the specific risks entailed in premature disclosure of one category of document might differ from risk of disclosure of the other. See Campbell, 682 F.2d at 263-64 (“If a direct relationship between an active investigation and withheld information constituted a sufficient predicate for the invocation of Exemption 7(A), the Court in Robbins Tire would not have examined the special risks entailed in premature disclosure of statements of prospective witnesses in NLRB proceedings, the particular kind of records at issue in that case.“); see also Robbins Tire, 437 U.S. at 236, 98 S.Ct. 2311 (“Exemption 7 was designed to eliminate ‘blanket exemptions’ for Government records simply because they were found in investigatory files. . . .“). Without more “specific information about the impact of the disclosures,” we “cannot determine that, as a matter of law, disclosure ‘could reasonably be expected to interfere with enforcement proceedings.‘” Sussman, 494 F.3d at 1114.
For these reasons, the DOJ has not met its burden to warrant categorical withholding. Once again, we do not hold that the requested information is not exempt. On remand, the DOJ must clarify whether a related investigation is in fact ongoing and, if so, how the disclosure of documents relating to DeLay would interfere with it. Of course, this is not to say the DOJ must recite the names of subjects under continuing investigation or otherwise disclose information that would jeopardize the investigation. We simply require the DOJ to be more specific about the existence vel non of such an investigation.
C. Exemptions 3, 7(D) and 7(E)
In the alternative, the DOJ briefly invoked—and the district court even more briefly approved—withholding a portion of the requested records under Exemptions 3, 7(D) and 7(E).7 Citizens for Responsibility & Ethics in Wash., 870 F.Supp.2d at 83-85.
Exemption 3: FOIA exempts matters “specifically exempted from disclosure by statute,”
The DOJ bears the burden of “demonstrating some ‘nexus between disclosure and revelation of a protected aspect of the grand jury‘s investigation.‘” Lopez v. Dep‘t of Justice, 393 F.3d 1345, 1350 (D.C.Cir.2005) (quoting Senate of Puerto Rico, 823 F.2d at 584). But we are told only that the requested documents contain information that “could be used as evidence before a Federal Grand Jury” or “may be subpoenaed by a Federal Grand Jury” and therefore that “any such disclosure would clearly violate the secrecy of the Grand Jury proceedings.” Hardy Decl. 20, 24 (emphases added). This conclusory explanation is insufficient. “[T]here is no per se rule against disclosure of any and all information which has reached the grand jury chambers,” Lopez, 393 F.3d at 1349, let alone any and all information which “could” reach the grand jury, see In re Sealed Case, 192 F.3d 995,
Exemption 7(D): FOIA also exempts records or information compiled for law enforcement purposes to the extent disclosure of such records “could reasonably be expected to disclose the identity of a confidential source” or “information furnished by a confidential source.”
Exemption 7(E): FOIA also exempts records or information compiled for law enforcement purposes to the extent release of such records “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to
III
The DOJ has not met its burden to justify categorical withholding under Exemption 7(A) or 7(C). Nor has it provided sufficient detail at this stage for a court to determine whether a portion of the requested records may be withheld under Exemption 3, 7(D) or 7(E). Summary judgment for the defendant is therefore reversed and the case is remanded for further proceedings consistent with this opinion.
So ordered.