United States Court of Appeals, District of Columbia Circuit
Citizens for Responsibility and Ethics in Washington, Appellant
United States Department of Justice, Appellee
March 3, 2017
from the United States District Court for the District of
Columbia (No. 1:11-cv-00592)
L. Sobel argued the cause for appellant.
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.
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
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
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
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.
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).
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
specifically sought prosecution memoranda, but the
declaration stated that no prosecution memoranda were found
in the FBI's case ...