in the united states court of appeals · record no. 16-5138 the lex groupdc ♦ 1825 k street, n.w....

RECORD NO. 16-5138

THE LEX GROUPDC ♦ 1825 K Street, N.W. ♦ Suite 103 ♦ Washington, D.C. 20006 (202) 955-0001 ♦ (800) 856-4419 ♦ Fax: (202) 955-0022 ♦ www.thelexgroup.com

ORAL ARGUMENT SCHEDULED FOR MARCH 3, 2017

In The

United States Court of Appeals For The District of Columbia Circuit

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff-Appellant,

v.

UNITED STATES DEPARTMENT OF JUSTICE,

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

REPLY BRIEF OF APPELLANT

David L. Sobel Adam J. Rappaport LAW OFFICE OF DAVID L. SOBEL CITIZENS FOR RESPONSIBILITY AND 5335 Wisconsin Avenue, N.W., Suite 640 AND ETHICS IN WASHINGTON Washington, DC 20015 455 Massachusetts Avenue, N.W., Floor 6 (202) 246-6180 Washington, DC 20001 (202) 408-5565 Counsel for Appellant Counsel for Appellant

USCA Case #16-5138 Document #1657110 Filed: 01/24/2017 of 26

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................................................................... ii STATUTES AND REGULATIONS ......................................................................... 1 SUMMARY OF THE ARGUMENT ........................................................................ 1 ARGUMENT ............................................................................................................. 3

I. The District Court Erred When it Permitted DOJ to Rely Upon Exemption 5 to Withhold Responsive Information .............................. 3

II. The District Court Erred When it Approved DOJ’s Withholding

of Disputed Information Under Exemptions 6 and 7(C)..................... 13 CONCLUSION ........................................................................................................ 19 CERTIFICATE OF COMPLIANCE CERTIFICATE OF FILING AND SERVICE


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TABLE OF AUTHORITIES

Page(s)

CASES Army Times Publ’g Co. v. Dep’t of Air Force, 998 F.2d 1067 (D.C. Cir. 1993) ................................................................. 9, 10 *August v. FBI, 328 F.3d 697 (D.C. Cir. 2003) ..................................................... 6, 7, 8, 11, 13 Charter Oil Co. v. Am. Emp’rs’ Ins. Co., 69 F.3d 1160 (D.C. Cir. 1995) ....................................................................... 10 CREW v. U.S. Dep’t of Justice, 746 F.3d 1082 (D.C. Cir. 2014) ............................................................... 18, 19 Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989)....................................................................................... 17 Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990) ................................................................. 16, 17 Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv., 656 F.2d 856 (D.C. Cir. 1981) ................................................................. 15, 16 Johnson v. Exec. Office for United States Attorneys, 310 F.3d 771 (D.C. Cir. 2002) ....................................................................... 10 Jordan v. U.S. Dep’t of Justice, 591 F.2d 753 (D.C. Cir. 1978) ....................................................................... 10 Keys v. U.S. Dep’t of Justice, 830 F.2d 337 (D.C. Cir. 1987) ....................................................................... 14 LaCedra v. Exec. Office for United States Attorneys, 317 F.3d 345 (D.C. Cir. 2003) ......................................................................... 3 * Authorities chiefly relied upon are marked with asterisks.


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*Maydak v. U.S. Dep’t of Justice, 218 F.3d 760 (D.C. Cir. 2000) ................................ 1, 3, 4, 5, 6, 7, 8, 9, 10, 13 Oglesby v. U.S. Dep’t of the Army, 79 F.3d 1172 (D.C. Cir. 1996) ....................................................................... 10 Ryan v. Dep’t of Justice, 617 F.2d 781 (D.C. Cir. 1980) ......................................................................... 5 Senate of the Commonwealth of Puerto Rico v. U.S. Dep’t of Justice, 823 F.2d 574 (D.C. Cir. 1987) ................................................................... 8, 12 Smith v. Dep’t of Justice, 251 F.3d 1047 (D.C. Cir. 2001) ................................................................... 3-4 *Stern v. FBI, 737 F.2d 84 (D.C. Cir. 1984) ................................................................... 14, 19 Stonehill v. IRS, 558 F.3d 534 (D.C. Cir. 2009) ....................................................................... 10 Wash. Post Co. v. U.S. Dep’t of Health & Human Services, 795 F.2d 205 (D.C. Cir. 1986) ................................................................... 3, 12 OTHER AUTHORITY Department of Justice Guide to the Freedom of Information Act, Discretionary Disclosure (December 8, 2014) available at https://www.justice.gov/sites/default/files/oip/pages/ attachments/2014/12/08/discretionary_disclosure_sent_for_posting_december_5_2014.pdf (last viewed December 12, 2016) .................................................... 12


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STATUTES AND REGULATIONS

All relevant statutes and regulations are set forth in the opening brief and

addendum.

SUMMARY OF THE ARGUMENT

As CREW showed in its opening brief, DOJ’s belated invocation of

Exemption 5 on remand was in clear violation of this Court’s explicit and long-

standing requirement that all agency exemption claims must be raised in the

original district court proceeding. DOJ’s brief ignores two critical factors raised by

CREW that distinguish this case from those rare and extraordinary instances in

which the Court has made exceptions to its strict waiver rule. First, the agency

does not address the fact that DOJ itself cited the Court’s ruling in Maydak when,

in the initial lower court proceeding in 2011, it articulated its reasons for invoking

numerous exemption claims (but not Exemption 5), notwithstanding its assertion

that all responsive records were categorically exempt from disclosure. Second,

DOJ does not even acknowledge the fact that, in 2003, it assured the Court that it

had put in place procedures to ensure that the “mistake” it made in Maydak would

not be repeated.

Without acknowledging these critical facts, DOJ asserts that it is entitled to

the solicitude the Court has rarely granted, and only under circumstances deemed

to be “extraordinary.” Here, the agency has not claimed that any mistake was


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made, or offered any explanation for its violation of a long-standing and

fundamental rule. Nor is the information at issue of the kind that has motivated the

Court to allow belated exemption claims in the past. Rather, the agency is merely

seeking to assert a claim of privilege to withhold the type of information the

agency itself acknowledges may be freely disclosed as a matter of discretion.

With respect to the agency’s withholding of all information concerning third

parties on privacy grounds under Exemptions 6 and 7(C), CREW previously

showed that the district court ignored the specific facts of this case, where

numerous individuals have been identified by DOJ as having been implicated in

the large-scale public corruption investigation underlying CREW’s FOIA request,

including many who were indicted and convicted. DOJ fails to explain how its per

se withholding of all third-party information was proper in light of those

circumstances. Instead, the agency concedes that the withheld information would

“provide more information about Mr. DeLay’s conduct and associations” – the

very issues that were at the heart of the government’s corruption investigation. As

this Court previously recognized, such evidence is precisely the type of

information that would serve the strong public interest in examining the manner in

which DOJ conducted the investigation. As such, the public interest in disclosure

clearly outweighs the minimal privacy interests of numerous individuals already


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connected to the investigation, particularly those who were indicted and/or

convicted.

ARGUMENT

I. The District Court Erred When it Permitted DOJ to Rely Upon Exemption 5 to Withhold Responsive Information

CREW showed in its opening brief that the district court departed from this

Court’s clear and longstanding precedent when it permitted DOJ to withhold

material under FOIA Exemption 5. The result below was in stark violation of the

well-established rule that an agency “must raise all its claims of exemption in the

original proceedings in district court, and may not thereafter assert new claims of

exemption, either on appeal or on remand following appeal.” Wash. Post Co. v.

U.S. Dep’t of Health & Human Services, 795 F.2d 205, 208 (D.C. Cir. 1986)

(Scalia, J.) (emphasis added; footnote and citation omitted).

As the Court strongly reiterated in 2000, “[w]e have plainly and repeatedly

told the government that, as a general rule, it must assert all exemptions at the

same time, in the original district court proceedings.” Maydak v. U.S. Dep’t of

Justice, 218 F.3d 760, 764-765 (D.C. Cir. 2000) (citations omitted); see also

LaCedra v. Exec. Office for United States Attorneys, 317 F.3d 345, 348 (D.C. Cir.

2003) (“We held [in Maydak] that an agency could not raise FOIA exemptions

seriatim and ordered the Agency to produce all the relevant documents without

regard to any belatedly asserted exemptions.”); Smith v. Dep’t of Justice, 251 F.3d


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1047, 1051 (D.C. Cir. 2001) (“The Government identifies no ‘extraordinary

circumstance’ or ‘interim development’ of facts or of law to warrant our departing

from [the Maydak] rule. Therefore, it must produce the [withheld material].”)

DOJ’s opposition brief is notable primarily for the issues the agency has

chosen to ignore. Thus, DOJ fails to address a feature of this case that

distinguishes it from all previous situations in which the Court has considered an

agency’s failure to raise FOIA exemption claims in a timely manner. As CREW

highlighted in its opening brief, it was DOJ itself that first asserted that the Maydak

rule governs this case when, in August 2011, it initially moved for summary

judgment.

While DOJ relied upon “categorical” invocations of Exemptions 6, 7(C), and

7(A) to withhold all information responsive to CREW’s FOIA request, it explicitly

cited Maydak as the basis for its additional invocations of Exemptions 3, 7(D), and

7(E) to withhold unspecified portions of the material. As the agency explained, its

assertions of those exemptions “reflect[ed] DOJ’s position that it would only need

to rely on [them] if the court rejected the applicability of categorical” exemption

claims. The agency made clear that it took that approach “in light of Maydak.” JA

192. Likewise, the FBI’s declarant was unequivocal in his explanation that, “[i]n

light of the D.C. Circuit’s ruling in Maydak v. U.S. Department of Justice, 218

F.3d 760 (D.C. Cir. 2000), FOIA Exemptions (b)(2), (b)(3), (b)(6), (b)(7)(C),


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(b)(7)(D) and (b)(7)(E) are also being asserted [in addition to Exemption

7(A)] . . . .” JA 82.

DOJ now seeks to ignore its early invocation of Maydak, and instead points

to the fact that the Criminal Division – but not the FBI – cited Exemption 5 as a

basis for withholding its own records from disclosure. According to the agency,

CREW “was put on notice of the relevance of Exemption 5 by the Criminal

Division’s invocation of the exemption,” DOJ Brief at 12, and the district court

was thus correct in concluding that “[t]he FBI’s efforts to withhold ‘similar

material for the same reasons’ reflected ‘at most a lack of precision’ rather than

‘intentional sandbagging.’” Id. at 19 (citation omitted).1

While neither CREW nor the Court can guess at the agency’s motivations –

whether it intended to “sandbag” or not – DOJ is flatly incorrect when it suggests

that CREW was somehow “put on notice” that the FBI might belatedly, at some

distant point in the litigation, rely upon Exemption 5. Rather, in light of the

1 DOJ’s position here is even more tenuous than it was in Ryan v. Dep’t of Justice, 617 F.2d 781 (D.C. Cir. 1980), where the agency sought to raise Exemption 6 claims for the first time on appeal and argued that it had, in a footnote of its summary judgment brief, “inform[ed] the district court that the Government did not wish its assertion of Exemption 5 to be construed as waiving the possible applicability of remaining exemptions . . ., for example Exemption 6.” This Court rejected that argument, noting its requirement that “the agency raise the exemption by identifying it at the district court level and by demonstrating that the exemption applies to the documents in question.” Id. at 792 n.38a (citation omitted). “The Government did not assert Exemption 6 as a defense in a manner in which the district court could rule on the issue,” and thus did not properly raise the exemption. Id.


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Bureau’s explicit invocation of the Maydak rule when it advanced numerous

exemption claims in 2011, coupled with the fact that the Criminal Division was at

the same time clearly invoking Exemption 5, the only thing CREW was “put on

notice of” was that the FBI, after conducting a thorough and cautious review of its

exemption claims (as required by Maydak), was consciously and explicitly not

relying upon Exemption 5. The bottom line is that DOJ filed a summary judgment

motion in which it advanced an Exemption 5 argument on behalf of the Criminal

Division, but did not advance the same claim on behalf of the FBI. To characterize

that behavior as “at most, a lack of precision” is to call into question the integrity

of the adversarial process.2

DOJ ignores another distinguishing characteristic of this case when it

cherry-picks language from August v. FBI, 328 F.3d 697 (D.C. Cir. 2003), in

support of the suggestion that the Court has “undertaken a ‘flexible approach to

handling belated invocations of FOIA exemptions.’” DOJ Brief at 18 (citation

omitted). As CREW noted in its opening brief, the Court in August cited three

critical factors undergirding its willingness to permit the agency belatedly to

advance exemption claims: the information at issue was “‘sensitive, personal

private information’ pertaining to third parties;” the agency “admitted that it made

a mistake in failing to invoke” the exemptions; and, most critically for purposes of

2 DOJ, of course, also proceeded before this Court on appeal without raising the slightest suggestion that Exemption 5 claims might be at issue.


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this case, DOJ had assured the Court that it had “taken affirmative steps to abide

by Maydak, to guard against recurrence of this problem.” 328 F.3d at 700-02

(internal quotation marks omitted).3

The Court in August left no doubt as to the distinct reasons for its departure

from the longstanding rule that had been reiterated in Maydak:

To sum up, because the Government’s failure to raise all FOIA exemptions at the outset resulted from human error, because wholesale disclosure would pose a significant risk to the safety and privacy of third parties, and because the Government has taken steps to ensure that it does not make the same mistake again, we see this case as inappropriate for the rigid “press it at the threshold, or lose it for all times” approach . . . .

Id. at 702. Here, the FBI has not claimed any “human error” or mistake – indeed,

the district court expressly noted that the agency offered “no mea culpa or

acknowledgement [of] mistake, and indeed no explanation at all as to its failure to

assert Exemption 5 . . . in the original proceedings.” JA 306-307 (emphasis in

original).4

3 The Court emphasized that “at the time this litigation commenced, Maydak had not yet been decided, and under then governing law, the Government might quite plausibly have believed that it could rely solely on Exemption 7(A) without reviewing its voluminous investigative file on August to determine whether other exemptions might apply.” Id. at 701.

No sensitive, personal information is at issue, as it was in August. But

4 The district court should have found that conclusion to be dispositive. As this Court held in Maydak, “[b]ecause the DOJ has failed to explain adequately why it could not have pleaded the other exemptions on which it wished to rely in the original district court proceedings, we . . . order the release of all requested documents . . . .” 218 F.3d at 761.


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most importantly, DOJ in this case dishonored the assurance it gave the Court in

August that it would “not make the same mistake again” – an assurance that

formed the basis for the exception made in that case. Given the serious

implications this case poses for the agency’s relationship with the Court, it is

remarkable that DOJ does not see fit to even address the issue.

DOJ in its brief thus fails to address two critical issues: its explicit

recognition of Maydak’s requirements when it first moved for summary judgment

in 2011; and its violation of the assurance it gave the Court in August. Instead, the

agency focuses on the contention that its belated invocation of Exemption 5 has not

“delay[ed] the litigation.” DOJ Brief at 19 (citations omitted). As an initial matter,

CREW notes that the Court has never held that “delay” is a dispositive factor.

Rather, the Court has emphasized the “powerful . . . interest in judicial finality and

economy, which has ‘special force in the FOIA context, because the statutory goals

– efficient, prompt, and full disclosure of information – can be frustrated by agency

actions that operate to delay the ultimate resolution of the disclosure request.’”

August, 328 F.3d at 699, quoting Senate of the Commonwealth of Puerto Rico v.

U.S. Dep’t of Justice, 823 F.2d 574, 580 (D.C. Cir. 1987) (emphasis in original).

The words “judicial finality” and “prompt” do not appear in DOJ’s brief, despite

the Court’s own emphasis on those considerations.


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Here, there can be no serious dispute that, as a result of the agency’s actions,

“the ultimate resolution of the disclosure request” has not been “prompt.” As

CREW noted in its opening brief, the propriety of the FBI’s withholding claims

was fully litigated in the district court in 2011, without any suggestion that the

Bureau sought to rely upon Exemption 5 (notwithstanding DOJ’s explicit

invocation of the Maydak rule). The district court ruled in 2012 on all the claims

the FBI raised, and the propriety of those claims was litigated on appeal and

addressed by this Court in 2014. With a final resolution now unlikely until, at the

earliest, sometime in 2017, the agency’s actions have already dragged this matter

out for almost six years.

In support of its contention that its belated exemption claim has caused no

delay, DOJ asserts that “consideration of the government’s Exemption 5 argument

would require no remand and no new proceedings.” DOJ Brief at 20. The agency

is incorrect. The district court held that the FBI “properly withheld pages DeLay

123-128 pursuant to FOIA Exemption 5” in their entirety. JA 309. The court

made no finding with respect to segregability of non-exempt information, a critical

requirement for any judicial determination under Exemption 5, which does not

apply “to any purely factual, non-exempt information the document contains,” and

which “must be disclosed if it is ‘reasonably segregable’ from exempt portions of

the record.” Army Times Publ’g Co. v. Dep’t of Air Force, 998 F.2d 1067, 1071


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(D.C. Cir. 1993). A district court’s “fail[ure] to enter a finding of segregability . . .

warrants a remand.” Id. at 1068. See also Johnson v. Exec. Office for United

States Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (“a district court has the

obligation to consider the segregability issue sua sponte, regardless of whether it

has been raised by the parties” and this Court has “many times remanded in cases

where the district court had failed to rule on segregability”) (citation omitted).

DOJ next argues that, despite its violation of Maydak and resulting waiver,

the Court should consider the merits because they are “relevant in evaluating

whether release of the information would in fact undermine the interests that

Exemption 5 was enacted to protect.” DOJ Brief at 21.5

5 The agency cites Stonehill v. IRS, 558 F.3d 534, 542 (D.C. Cir. 2009), but fails to note that the Court there described instances where the waiver rule was “not rigidly applied” as having been “based on extraordinary circumstances,” none of which are present here.

The agency’s invitation

ignores the fundamental principle that, as CREW has noted, the effect of a waiver

is that a court “do[es] not reach the merits” of the waiving party’s claims because

the party is “preclude[d] . . . from raising them.” Charter Oil Co. v. Am. Emp’rs’

Ins. Co., 69 F.3d 1160, 1171 (D.C. Cir. 1995); see also Oglesby v. U.S. Dep’t of

the Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996) (where party “did not raise . . .

argument in a timely manner, we do not address it on the merits”); Jordan v. U.S.

Dep’t of Justice, 591 F.2d 753, 779 (D.C. Cir. 1978) (“In our view, th[e]


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Exemption 7 claim was not timely made by the Department, and consequently

there is no need to consider its merits.”).

In any event, the FBI’s Exemption 5 claim does not implicate the kinds of

interests the Court has sought to protect in the rare instances in which waived

exemption claims have been considered. Thus, as noted, third-party privacy

interests were deemed sufficiently critical in August to warrant belated protection,

with the Court citing the “significant risk to the safety and privacy of third parties,”

and noting that “[t]he law does not require that third parties pay for the

Government’s mistakes.” 328 F.3d at 701 (citation omitted). The Exemption 5

claim at issue here does not raise similar considerations. Indeed, DOJ itself has

provided guidance to agencies concerning “discretionary releases” of exempt

information and advised that “the ability to make a discretionary release will vary

according to the exemption involved and whether the information is required to be

protected by some other legal authority.” The guidance explains:

Some of the FOIA’s exemptions such as Exemption 2 and Exemption 5, protect a type of information that is not generally subject to a disclosure prohibition. By contrast, the exemptions covering national security, commercial and financial information, personal privacy, and matters within the scope of nondisclosure statutes protect records that are also encompassed within other legal authorities that restrict their disclosure to the public.


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Department of Justice Guide to the Freedom of Information Act, Discretionary

Disclosure (December 8, 2014) at 3.6

Finally, DOJ asserts that “[t]his case . . . resembles Senate of Puerto Rico,”

one of the rare instances in which belated exemption claims were permitted. DOJ

Brief at 22. In fact, the differences between the two situations are stark. In Senate

of Puerto Rico, the agency’s initial summary judgment motion was based solely

upon Exemption 7(A) and became moot when the relevant criminal proceedings

concluded. The district court had not yet ruled on the initial motion, and merely

permitted the agency to file a new dispositive motion relying upon additional

exemption claims. 823 F.2d at 580-81. Unlike the situation present here, the

agency did “raise all its claims of exemption in the original proceedings in district

court,” Wash. Post, 795 F.2d at 208, and did not seek to “assert new claims of

exemption . . . on remand following appeal,” id. (emphasis added). As the Court

said in Maydak,

The purported harm surrounding disclosure

of information withheld under Exemption 5 – which the agency is free to disclose

as a matter of discretion – cannot be equated with the interests the Court has sought

to protect in a small number of “extraordinary” cases.

We can find nothing in Senate of Puerto Rico that should be construed as supporting the proposition that, when the government withdraws its

6 Available at https://www.justice.gov/sites/default/files/oip/pages/ attachments/2014/12/08/discretionary_disclosure_sent_for_posting_december_5_2014.pdf (last viewed December 12, 2016).


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reliance on Exemption 7(A) after the district court has reached a final decision and an appeal has been filed, the appropriate course of action is necessarily remand to the agency for reprocessing of the FOIA request in question. Accordingly, we conclude not only that the DOJ did not genuinely assert exemptions other than Exemption 7(A) in the court below, but also that it had no legitimate excuse for its failure to do so.

218 F.3d at 767 (emphasis added). The same conclusion is appropriate here.

Indeed, in light of the FBI’s own citation of Maydak in the original district court

proceeding – and the assurance DOJ gave the Court in August – the agency had

even less of an excuse than in did in Maydak.*

II. The District Court Erred When it Approved DOJ’s Withholding of Disputed Information Under Exemptions 6 and 7(C)

The district court, with virtually no supporting analysis, approved the FBI’s

indiscriminate withholding of information concerning all individuals other than Mr.

DeLay and Jack Abramoff. In so doing, the court ignored the specific and unique

circumstances present in this case, where numerous individuals were indicted and

* In its page proof reply brief filed on December 19, 2016, CREW included a paragraph stating that “DOJ appears to have made a material misrepresentation to the Court with respect to the scope of the information at issue in this appeal,” and addressing that misrepresentation. On December 29, 2016, DOJ filed a Consent Motion to File Corrected and Replacement Final Briefs, in which it acknowledged that “[t]he government’s initial answering brief in this appeal contained a factual error, and the appellant’s initial reply brief identified that error.” As of the time that CREW is preparing this final reply brief for filing, the Court has not yet ruled on DOJ’s motion, but CREW understands that DOJ will be omitting the disputed material from its final brief. As such, at DOJ’s request, CREW has omitted its discussion of the matter from this final reply brief.


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convicted as a result of the government’s corruption investigation involving Mr.

Abramoff and his associates.

CREW noted in its opening brief that “[t]he Exemption 7(C) balancing test

must be applied to the specific facts of each case.” Stern v. FBI, 737 F.2d 84, 91

(D.C. Cir. 1984). This Court has explained that “[b]ecause the myriad of

considerations involved in the Exemption 7(C) balance defy rigid compart-

mentalization, per se rules of nondisclosure . . . are generally disfavored.” Id.

(citation omitted); see also Keys v. U.S. Dep’t of Justice, 830 F.2d 337, 347 (D.C.

Cir. 1987) (“[a] compartmentalization is ‘rigid’ within the meaning of Stern . . . to

the extent [inter alia] that it ignores factors that are material”). CREW showed

that under the “specific facts” of this case – where the identities of numerous

individuals have already been disclosed and this Court has already held that there

is a substantial public interest in the withheld material – the FBI failed to establish

its entitlement to broadly rely upon FOIA’s privacy exemptions to withhold all

information relating to any third-parties (other than Mr. Abramoff) named in the

Bureau’s investigative files concerning Mr. DeLay.

DOJ’s response to CREW’s argument is largely a generic survey of the

caselaw establishing the general standards under which the courts balance

individuals’ privacy interests against the public interest in disclosure, none of

which is in dispute. The agency has failed to explain why, notwithstanding the


15

substantial amount of public information already available concerning numerous

individuals associated with the government’s wide-ranging corruption

investigation – including numerous indictments and convictions – no information

relating to any individuals other than Mr. DeLay and Mr. Abramoff can be

disclosed without resulting in an unwarranted violation of personal privacy.

The agency’s misapplication of the governing legal standards is apparent

from its citation of Fund for Constitutional Gov’t v. Nat’l Archives & Records

Serv., 656 F.2d 856 (D.C. Cir. 1981), and its assertion that the Court there

“approved comparable withholdings in a substantially similar case.” DOJ Brief at

28. At issue in that case was, inter alia, information “which would reflect

investigations of allegations of possible wrongdoing by individuals who were

neither indicted nor prosecuted,” and information “pertaining to individuals who

were not the targets of investigation.” 656 F.2d at 861. Here, in contrast, the

withheld information includes information relating to “third parties of investigative

interest to the FBI,” without any limitation concerning their possible indictment or

prosecution. JA 215. Unlike here, the FOIA requester in Fund for Constitutional

Gov’t did not argue that some of the named individuals had diminished privacy

interests by virtue of having been publicly connected to the investigation (some of

whom, as here, were indicted and convicted). Rather, the requester argued that

“the individuals are public figures, high level government or corporate officials,


16

[and] their privacy interests [thus] are entitled to little, if any, consideration.” 656

F.2d at 864. The Court rejected that argument and explained its holding:

In sum, we do not state a per se rule that, in every case where individuals have been investigated but not charged with a crime, that information is properly exempt from disclosure under Exemption 7(C). We adhere to the view that any per se approach would be inconsistent with the Court’s duty to balance de novo the privacy interests at stake against the public interest in disclosure.

Id. at 866. Two things are thus clear from this authority: 1) the Court did not

consider the privacy interests of individuals who had been “charged with a crime;”

and 2) the Court recognized that even where named individuals had not been

charged, the interest in disclosure might outweigh whatever privacy interests might

be at stake. Fund for Constitutional Gov’t thus was not a “substantially similar

case,” and it actually rejects the type of per se approach embraced by DOJ and the

district court.

DOJ’s misapplication of the Court’s authority is also apparent in its citation

of Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990), which, according to the

agency, “recognized that the FBI’s prior release of certain information about a

third party who featured prominently in its investigation did not cause the third

party’s” privacy interests to be diminished. DOJ Brief at 31-32. The information

the Court referenced in Fitzgibbon “concerned a New York publisher named

Stanley Ross and events that transpired years before the Galindez affair [the

subject of the FBI investigation].” 911 F.2d at 766-767. Because the information


17

was clearly unrelated to the FBI investigation at issue, the Court concluded that the

“records say nothing of significance about ‘what the[] Government is up to.’” Id.

at 768 (internal quotation marks omitted).

The suggestion that the third-party information at issue here says nothing

about “what the Government is up to,” a concept derived from Dep’t of Justice v.

Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989), runs through

DOJ’s brief. The Supreme Court’s holding in that case thus bears repeating:

[FOIA] focuses on the citizens’ right to be informed about “what their government is up to.” Official information that sheds light on an agency’s performance of its statutory duties falls squarely within that statutory purpose. That purpose, however, is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency’s own conduct. In this case – and presumably in the typical case in which one private citizen is seeking information about another – the requester does not intend to discover anything about the conduct of the agency that has possession of the requested records. Indeed, response to this request would not shed any light on the conduct of any Government agency or official.

Id. at 773. Here, it is clear that CREW “intend[s] to discover [something] about

the conduct of the agency,” and does not merely seek “information about private

citizens that is accumulated in various governmental files.” As this Court has

already recognized, disclosure of the records at issue in this case “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” and “would likely reveal

much about the diligence of the FBI’s investigation and the DOJ’s exercise of its


18

prosecutorial discretion.” CREW v. U.S. Dep’t of Justice, 746 F.3d 1082, 1093

(D.C. Cir. 2014).

Ultimately, the parties disagree about the probative value of the disputed

information with respect to the conduct of the FBI and DOJ. Thus, the agency

asserts that disclosure

would not materially advance the public’s interest in learning about the government’s handling of the DeLay investigation. As the district court recognized, “[w]hile releasing the withheld names would provide more information about Mr. DeLay’s conduct and associations, it is unclear from (CREW’s) argument how doing so would serve the public interest in shedding light on how the Department conducted the investigation.”

DOJ Brief at 28 (citation omitted). The concession that the withheld information

“would provide more information about Mr. DeLay’s conduct and associations” is

significant and, indeed, supports CREW’s argument. The Bureau’s corruption

investigation obviously focused upon “Mr. DeLay’s conduct and associations” – as

the FBI’s declarant explained, “[d]uring the course of the investigation, the FBI . . .

created an interwoven tapestry of connections among those individuals who have

either pled guilty or have been convicted, as well as many other individuals . . .

who have been persons of investigative interest.” JA 73. The evidence collected

in the investigation thus centered on Mr. DeLay’s “connections” and “associations,”

and the Court has already concluded that disclosure of the records at issue would

reveal “whether the government had the evidence but nevertheless pulled its


19

punches.” 746 F.3d at 1093. It is difficult to fathom how the strength of the

evidence (or the lack thereof) can be assessed if all information relating to Mr.

DeLay’s associations with other individuals remains hidden.

To be clear, CREW does not assert that all information concerning all third-

parties who appear in the withheld records must be disclosed. The agency’s

blanket withholding of every reference to every third-party other than Mr.

Abramoff, however, cannot be sustained. In that regard, CREW notes that DOJ

has not articulated any distinction between Mr. Abramoff and the numerous other

individuals who were also charged and prosecuted during the course of the

government’s wide-ranging public corruption investigation. The agency has

clearly failed to “appl[y] . . . the specific facts of [this] case” and instead

impermissibly employed “per se rules of nondisclosure.” Stern, 737 F.2d at 9.

CONCLUSION

For the foregoing reasons, and those presented in CREW’s opening brief, the

judgment of the district court should be reversed.

Respectfully submitted,

/s/ David L. Sobel DAVID L. SOBEL 5335 Wisconsin Avenue, N.W. Suite 640 Washington, DC 20015 (202) 246-6180


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ADAM J. RAPPAPORT Citizens for Responsibility and Ethics in Washington 455 Massachusetts Avenue, N.W., Floor 6 Washington, DC 20001 (202) 408-5565 Counsel for Appellant


CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App. P. 28.1(e)(2) or 32(a)(7)(B) because:

[ X ] this brief contains [4,894] words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or

[ ] this brief uses a monospaced typeface and contains [state the number of] lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:

[ X ] this brief has been prepared in a proportionally spaced typeface using [Microsoft Word 2007] in [14pt Times New Roman]; or [ ] this brief has been prepared in a monospaced typeface using [state name and version of word processing program] with [state number of characters per inch and name of type style].

Dated: January 24, 2017 /s/ David L. Sobel Counsel for Appellant


CERTIFICATE OF FILING AND SERVICE

I hereby certify that on this 24th day of January, 2017, I caused this Reply

Brief of Appellant to be filed electronically with the Clerk of the Court using the

CM/ECF System, which will send notice of such filing to the following registered

CM/ECF users:

William E. Havemann Matthew M. Collette U.S. DEPARTMENT OF JUSTICE (DOJ) Civil Division 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 514-2000 Counsel for Appellee

/s/ David L. Sobel Counsel for Appellant


in the united states court of appeals · record no. 16-5138 the lex groupdc ♦ 1825 k street, n.w....

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