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Citizens for Responsibility and Ethics in Washington v. United States Department of Justice

United States Court of Appeals, District of Columbia Circuit

April 21, 2017

Citizens for Responsibility and Ethics in Washington, Appellant
v.
United States Department of Justice, Appellee

          Argued March 3, 2017

         Appeal from the United States District Court for the District of Columbia (No. 1:11-cv-00592)

          David L. Sobel argued the cause for appellant.

          With him on the briefs was Adam J. Rappaport.

          William E. Havemann, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney at the time the brief was filed, and Matthew M. Collette, Attorney.

          Before: Tatel, Srinivasan and Wilkins, Circuit Judges.

          Wilkins Circuit Judge.

         Citizens for Responsibility and Ethics in Washington (CREW) appealed from an order of the District Court granting summary judgment in favor of the United States Department of Justice (DOJ) and denying CREW's cross-motion for partial summary judgment. In granting summary judgment, the District Court agreed that Exemption 5 in the Freedom of Information Act (FOIA) shielded certain Federal Bureau of Investigation (FBI) correspondence and that Exemptions 6 and 7(C) could be invoked to protect names and other personal information contained in responsive records.

         We reverse the District Court's grant of summary judgment. We conclude that the Government's assertion of Exemption 5 was untimely and, before ruling on Exemptions 6 and 7(C), a more particularized balancing of the interests at stake is required.

         I.

         "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." CREW v. DOJ (CREW I), 746 F.3d 1082, 1087 (D.C. Cir. 2014). Two of those convicted had been senior aides to former House of Representatives Majority Leader Tom DeLay. Id. Although the FBI never acknowledged whether DeLay was a subject of their investigation, in August 2010, DeLay himself announced that DOJ had informed him that it would not bring charges against him. Id.

         In October 2010, CREW filed a FOIA request with the FBI, a component of DOJ. The request sought information related to DOJ's investigation of DeLay, including records related to DOJ's investigation of relationships between DeLay and fourteen specified individuals and entities.

         DOJ declined to provide any requested documents on the basis 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 interest in disclosure outweighs the personal privacy interest and that significant public benefit would result from the disclosure of the requested records." Id. at 1089 (internal quotation marks omitted).

         After exhausting its administrative remedies, CREW filed suit against DOJ. Id. The parties filed cross-motions for summary judgment. Id. In support of its motion, DOJ submitted a declaration asserting that "all responsive documents were categorically exempt under Exemption 7(A) and Exemptions 6 and 7(C)." Id. at 1090 (citations omitted). The Government also invoked Exemptions 2, 3, 7(D) and 7(E) to withhold some portions of the responsive material.[1]Id. CREW specifically sought prosecution memoranda, but the declaration stated that no prosecution memoranda were found in the FBI's case ...


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