Cause of Action Institute v. United States Department of Justice

Cross MOTION for Summary Judgment & Resp. to Def.'s Mot. for Summ. J.

D.D.C.February 8, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) CAUSE OF ACTION INSTITUTE, ) ) Plaintiff, ) ) v. ) No. 1:16-cv-2226-RBW ) UNITED STATES DEPARTMENT OF JUSTICE, ) ) Defendant. ) __________________________________________) CAUSE OF ACTION INSTITUTE’S RESPONSE TO DEPARTMENT OF JUSTICE’S MOTION FOR SUMMARY JUDGEMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT R. James Valvo, III D.C. Bar No. 1017390 Lee A. Steven D.C. Bar. No. 468543 CAUSE OF ACTION INSTITUTE 1875 Eye St., NW, Suite 800 Washington, DC 20006 Telephone: (202) 499-4232 Facsimile: (202) 330-5842 james.valvo@causeofaction.org lee.steven@causeofaction.org Counsel for Plaintiff Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 1 of 38 ii TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......................................................................................................... iv INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 I. PROCEDURAL HISTORY ...................................................................................................... 2 II. SUMMARY JUDGEMENT IN FOIA CASES ............................................................................ 4 ARGUMENT .................................................................................................................................. 6 I. THE DOJ’S RE-PRODUCTION OF THE RECORD AT ISSUE CONCEDES ALL ISSUES RAISED IN THE COMPLAINT ............................................................................ 6 A. The DOJ Voluntarily Abandoned Its Positions in Response to CoA Institute’s Complaint ........................................................................................... 6 B. CoA Institute Does Not Challenge the Remaining Assertions of FOIA Exemptions in the Re-Produced Email Chain .............................................................. 7 C. CoA Institute Intends to Move for Attorney Fees and Costs ....................................... 8 II. COA INSTITUTE’S CLAIM IS NOT MOOT ............................................................................ 9 A. The DOJ’s Voluntary Change in Position after CoA Institute Filed Its Complaint Demonstrates that this Case Is Not Moot ................................................. 10 B. The DOJ’s Actions Are Capable of Repetition yet Evading Review ........................ 13 1. The DOJ’s challenged behavior in this case is too short to be fully litigated because the agency is free, as it did here, to reverse its position after a complaint has been filed but before a court rules ......................... 14 2. CoA Institute is reasonably expected to be subject to the same treatment again because it is a frequent FOIA requester and litigator, and because the DOJ has not abandoned its policy ................................ 16 III. THE DOJ’S USE OF “NON-RESPONSIVE” AND SEGMENTATION OF ONE RECORD INTO MULTIPLE RECORDS IS IMPROPER ........................................................................... 18 A. The DOJ’s Definition of a Record Should Be Reviewed De Novo ........................... 19 Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 2 of 38 iii B. The Segmentation of a Single Record into Nine Records Was Improper .................. 21 1. The Definition of “Record” under FOIA ............................................................... 22 2. The DOJ’s Content and Subject Matter Based Definition of a Record Is Untenable ........................................................................................................... 25 3. An Email Chain Is One Record ............................................................................. 28 CONCLUSION AND RELIEF SOUGHT ................................................................................... 31 Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 3 of 38 iv TABLE OF AUTHORITIES Page(s) Cases Al-Fayed v. Central Intelligence Agency, 254 F.3d 300 (D.C. Cir. 2001) ............................. 20, 21 *American Immigration Lawyers Association v. Executive Office for Immigration Review, 830 F.3d 667 (D.C. Cir. 2016) ....................... passim Aref v. Lynch, 833 F.3d 242 (D.C. Cir. 2016)................................................................................. 9 Belmont Abbey College v. Sebelius, 878 F. Supp. 2d 25 (D.D.C. 2012) ...................................... 12 Bureau of National Affairs, Inc. v. Department of Justice, 742 F.2d 1484 (D.C. Cir. 1984) ............................................................................................... 19 Byrd v. Environmental Protection Agency, 174 F.3d 239 (D.C. Cir. 1999) ................................. 11 Campbell v. Department of Justice, 164 F.3d 20 (D.C. Cir. 1998) .............................................. 21 Cause of Action Institute v. Internal Revenue Service & Department of Justice, No. 15-cv-770 (D.D.C. filed May 26, 2015) ............................................................................ 17 Cause of Action v. Federal Trade Commission, 799 F.3d 1108 (D.C. Cir. 2015) .................. 16, 20 Cause of Action v. Internal Revenue Service, 125 F. Supp. 3d 145 (D.D.C. 2015) ..................... 17 Cause of Action v. Treasury Inspector General for Tax Administration, 70 F. Supp. 3d 45 (D.D.C. 2014) ............................................................................................. 17 Center for the Study of Services v. Department of Health & Human Services, 130 F. Supp. 3d 1 (D.D.C. 2015) ............................................................................................. 15 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) ................................................................................................................. 20 Citizens for Responsibility & Ethics in Washington v. Securities & Exchange Commission, 858 F. Supp. 2d 51 (D.D.C. 2012) .......................... 10, 12 City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982) .................................................. 11 Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 557 U.S. 261 (2009) ................. 20 Consumers Council of Missouri v. Department of Health & Human Services, No. 14-1682, 2015 WL 1868703 (E.D. Mo. Apr. 23, 2015) .................................................... 18 County of Los Angeles v. Davis, 440 U.S. 625 (1979).................................................................. 10 Del Monte Fresh Produce Co. v. United States, 570 F.3d 316 (D.C. Cir. 2009) ......................... 14 *Department of Justice v. Tax Analysts, 492 U.S. 136 (1989) ............................................... 19, 23 Duncan v. Walker, 533 U.S. 167 (2001) ....................................................................................... 28 Food & Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ................................................................................................................. 28 *Cases upon which Plaintiff chiefly relies are marked with an asterisk. Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 4 of 38 v Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000) ................................................................................................................. 10 Goland v. Central Intelligence Agency, 607 F.2d 339 (D.C. Cir. 1978) ................................ 19, 24 Gulf Oil Corp. v. Brock, 778 F.2d 834 (D.C. Cir. 1985) ........................................................ 14, 15 Harvey v. Lynch, 123 F. Supp. 3d 3 (D.D.C. 2015) ........................................................................ 9 *Honeywell International, Inc. v. Nuclear Regulatory Commission, 628 F.3d 568 (D.C. Cir. 2010) ..................................................................................... 13, 14, 16 Honig v. Doe, 484 U.S. 305 (1988) .............................................................................................. 16 Huffman v. Western Nuclear, Inc., 486 U.S. 663 (1988) ................................................................ 5 Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173 (1979) ............... 16, 17 Judicial Watch, Inc. v. Department of Commerce, 583 F.3d 871 (D.C. Cir. 2009) ..................... 27 Kingdomware Technologies, Inc. v. United States, 136 S. Ct. 1969 (2016)................................. 14 Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980)..................... 24 Lamie v. United States Trustee, 540 U.S. 526 (2004)................................................................... 23 Larsen v. United States Navy, 525 F.3d 1 (D.C. Cir. 2008) ........................................................... 8 Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ........................... 4 McDonnell Douglas Corp. v. National Aeronautics & Space Administration, 102 F. Supp. 2d 21 (D.D.C. 2000) ..................................................................................... 14, 15 Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981) .................................................... 5 Monzillo v. Biller, 735 F.2d 1456 (D.C. Cir. 1984) ........................................................................ 8 Multi Ag Media LLC v. Department of Agriculture, 515 F.3d 1224 (D.C. Cir. 2008) ................................................................................................. 4 National Association of Criminal Defense Lawyers v. Executive Office for United States Attorneys, 75 F. Supp. 3d 552 (D.D.C. 2014) ...................................................... 5 National Association of Home Builders v. Salazar, 827 F. Supp. 2d 1 (D.D.C. 2011) ................ 12 New York Times v. National Aeronautics & Space Administration, 920 F.2d 1002 (D.C. Cir. 1990) ............................................................................................... 23 Newport Aeronautical Sales v. Department of the Air Force, 684 F.3d 160 (D.C. Cir. 2012) ................................................................................................. 13 Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988) .................................... 11 Ralls Corp. v. Committee on Foreign Investment in the United States, 758 F.3d 296 (D.C. Cir. 2014) ................................................................................................. 16 Reporters Committee for Freedom of the Press v. Department of Justice, 816 F.2d 730 (D.C. Cir. 1987) ................................................................................................. 21 Schladetsch v. Department of Housing & Urban Development, No. 99-0175, 2000 WL 33372125 (D.D.C. Apr. 4, 2000) ....................................................... 24 Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 5 of 38 vi Schoenman v. Federal Bureau of Investigation, 575 F. Supp. 2d 136 (D.D.C. 2008) ................... 5 Skidmore v. Swift & Co., 323 U.S. 134 (1944) ............................................................................. 20 Sossamon v. Lone Star State of Texas, 560 F.3d 316 (5th Cir. 2009)........................................... 11 *Tax Analysts v. Internal Revenue Service, 117 F.3d 607 (D.C. Cir. 1997) .................... 20, 21, 26 True the Vote, Inc. v. Internal Revenue Service, 831 F.3d 551 (D.C. Cir. 2016) ........................... 8 Turner v. Rogers, 564 U.S. 431 (2011)......................................................................................... 14 United States v. W.T. Grant Co., 345 U.S. 629 (1953) ........................................................... 10, 11 World Publishing Co. v. Department of Justice, No. 09-574, 2011 WL 1238383 (N.D. Okla. Mar. 28, 2011) ...................................................................................................... 15 Statutes 5 U.S.C. § 551 ............................................................................................................................... 22 5 U.S.C. § 551(1) .......................................................................................................................... 22 5 U.S.C. § 552(a)(2) ...................................................................................................................... 27 5 U.S.C. § 552(a)(3) ...................................................................................................................... 27 5 U.S.C. § 552(a)(4) ............................................................................................................ 5, 21, 28 5 U.S.C. § 552(f) ........................................................................................................................... 22 5 U.S.C. § 552(f)(1) ...................................................................................................................... 22 5 U.S.C. § 552(f)(2) ...................................................................................................................... 22 Electronic Freedom of Information Act Amendments of 1996, Pub. L. 104-123, 110 Stat. 3048 ............................................................................................... 24 Rules Federal Rule of Civil Procedure 56 ................................................................................................ 4 Other Authorities Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (1st ed. 2012) ............................................................................................................................ 28 Aristotle, Metaphysics (350 BC), available at http://bit.ly/2kEdTpp .......................................... 27 H.R. Rep. 104-795 (1996)....................................................................................................... 24, 27 S. Rep. 104-272 (1996) ................................................................................................................. 24 Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 6 of 38 INTRODUCTION This case presents the novel question of the definition of a “record” under the Freedom of Information Act (“FOIA”) and whether an agency may segment a single record into multiple records to withhold information as non-responsive. The case arises in the aftermath of the D.C. Circuit’s decision in American Immigration Lawyers Association v. Executive Office for Immigration Review (“AILA”), which held that an agency may not redact information within an otherwise responsive record simply because the subject matter of that information is non- responsive to the FOIA request. Instead, the D.C. Circuit held that an agency must disclose responsive records as a unit, subject to the FOIA’s nine statutory exemptions. In responding to a FOIA request sent by Plaintiff Cause of Action Institute (“CoA Institute”), and despite CoA Institute bringing the AILA authority to the agency’s attention during the administrative stage of this case, Defendant Department of Justice (“DOJ”) did not adhere to the D.C. Circuit’s ruling. It instead broke a single responsive record into nine separate records and redacted eight of those records in their entirety under a claim of “non-responsive.” CoA Institute brought this suit to resolve the issue of the definition of a record and the application of the non-responsive redaction. The DOJ now attempts to sidestep these issues by voluntarily ceasing the offending behavior through the re-production of the document as a single record with support for its redactions on grounds other than “non-responsive.” While doing so, the DOJ has published official guidance that seeks to justify its original treatment of the record at issue. As such, this case is not moot despite the DOJ’s voluntary cessation of the offending behavior. Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 7 of 38 2 BACKGROUND I. PROCEDURAL HISTORY There are no genuine disputes as to any material facts in this case. By letter, dated July 15, 2016, CoA Institute sent a FOIA request to the DOJ seeking access to two records. Compl. ¶ 6. The DOJ had previously produced the same two records to CoA Institute in response to a different FOIA request (FOIA request #10874), but the agency had withheld large amounts of information within those records by applying redactions bearing the label “non-responsive.” Compl. ¶ 7. CoA Institute’s July 15, 2016 request (FOIA Request #11018) sought production of those same two records without any non-responsive redactions and therefore asked for the entirety of each record. Compl. ¶ 8. In a phone call to clarify the scope of the request, the parties subsequently agreed that the request covered only “(1) an email chain on or about May 22, 2014 between, among others, Norah Bringer and Gretchen Wolfinger, and (2) a November 2011 report entitled Current Practices for Attorney Assignments, Transfers, and Details,” and that, because the DOJ had previously located those two records, it did not need to conduct an additional search for responsive records. Compl. ¶¶ 11–13; Banerjee Decl. ¶¶ 11–15. During the phone call to clarify the request, CoA Institute drew the DOJ’s attention to the D.C. Circuit’s decision in AILA, which holds that the use of “non-responsive” as a redaction tool to withhold information under the FOIA is improper. See Compl. Ex. 6. By letter, dated September 20, 2016, the DOJ issued its final determination on the request and produced records. Compl. ¶ 14. The DOJ produced the entirety of the November 2011 report with no redactions; as this was not an adverse determination, the November 2011 report and that item of the request were not included in this suit. Compl. ¶ 16; see also Compl. Ex. 8 Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 8 of 38 3 at 7 (CoA Institute administrative appeal recognizing that the DOJ had properly produced this record). CoA Institute disputed the production of the May 2014 email chain, however, because the DOJ broke that chain into what it claimed were nine distinct records1 and withheld each such element in its entirety. Compl. ¶ 17. In breaking the email chain into distinct records, the DOJ went so far as to claim that email headers were separate records from the body of that same email. Compl. ¶ 19. The DOJ withheld all of the designated records as “non-responsive” with the exception of what it designated as “Record 7,” which it withheld in full based on Exemptions 3 and 5. Compl. ¶ 17. CoA Institute administratively appealed this adverse determination; the DOJ did not respond to the appeal within the statutory deadline; and this suit followed. Compl. ¶¶ 18–22, 24–25. The CoA Institute Complaint asserted three bases to support its claim that the DOJ had violated the FOIA in its treatment of the May 2014 email chain. First, CoA Institute claimed that the DOJ had improperly segmented one record into nine records so as to apply “non-responsive” redactions. Compl. ¶¶ 29–30. Second, CoA Institute claimed that the use of “non-responsive” as a redaction tool was improper. Compl. ¶¶ 30, 37–38. Third, CoA Institute claimed that, with respect to the designated “Record 7,” the DOJ was overbroad in its application of Exemptions 3 and 5 and had failed to conduct a segregability analysis. Compl. ¶ 34–35. On January 11, 2017, the DOJ’s Office of Information Policy issued guidance on how the agency—and other agencies that follow its guidance—should interpret and implement AILA. Valvo Decl. ¶ 10; Valvo Decl. Ex. 3. The guidance also describes the process by which the DOJ will define a “record” in response to each FOIA request that it receives. Valvo Decl. ¶ 11; Valvo 1 The DOJ now asserts that the email chain consists of eight emails and not nine records, as it originally indicated on the September 20, 2016 production. See Mot. for Summ. J. at 2 n.2. Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 9 of 38 4 Decl. Ex. 4 [hereinafter DOJ Guidance]. On January 18, 2017, the DOJ filed its Answer and Motion for Summary Judgment. ECF Nos. 11–12. Contemporaneous to those filings, the DOJ re-produced the May 2014 email chain directly to CoA Institute with no redactions marked “non- responsive,” a reduction in the use of Exemptions 3 and 5 in email it had previously designated as “Record 7,” evidencing that the DOJ had conducted a segregability analysis, and, apparently, no longer breaking the email chain into multiple records.2 Valvo Decl. ¶¶ 8–9; Valvo Decl. Exs. 1–2. For the first time in this case, the DOJ invoked Exemptions 6 and 7 on the majority of its redactions. Valvo Decl. ¶ 9; Valvo Decl. Ex. 1. In its Motion for Summary Judgment, the DOJ abandons the position it took at the administrative level that portions of the email chain were “non-responsive” to the request. See Mot. for Summ. J. at 15 (“DOJ is not withholding any information based on responsiveness”). Instead, the DOJ “stand[s] solely on FOIA exemptions, not responsiveness” to withhold information within the email chain. Id. The DOJ also claims, without citation, that “the definitional issue [of what is a record] is moot.” Id. II. SUMMARY JUDGEMENT IN FOIA CASES Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–86 (1986). In a FOIA case, a district court must determine de novo “whether the agency has sustained its burden of demonstrating that the documents requested . . . are exempt from disclosure under the FOIA.” Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1227 (D.C. Cir. 2008) (quoting Gallant v. Nat’l Labor Relations Bd., 26 F.3d 168, 171 (D.C. Cir. 1994)); see also 5 U.S.C. § 552(a)(4)(B) (“[T]he 2 But see Valvo Decl. Ex. 1 at 2 (a notation in the reproduced email chain designating a portion of that chain as “Record 5”). Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 10 of 38 5 burden is on the agency to sustain its action[.]”). An agency may meet this burden by supplying affidavits justifying its response. 5 U.S.C. § 552(a)(4)(B). A court may resolve the motion for “summary judgment on the basis of . . . agency affidavits . . . if the affidavits describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). A district court should consider “the pleadings, the discovery materials on file, and any affidavits or declarations,” Nat’l Ass’n of Criminal Def. Lawyers v. Exec. Office for U.S. Attorneys, 75 F. Supp. 3d 552, 555 (D.D.C. 2014), aff’d on other grounds 829 F.3d 741 (D.C. Cir. 2016), and “all underlying facts and inferences are analyzed in the light most favorable to the FOIA requester.” Schoenman v. Fed. Bureau of Investigation, 575 F. Supp. 2d 136, 148 (D.D.C. 2008) (citing Weisberg v. Dep’t of Justice, 705 F.2d 1344, 1350–51 (D.C. Cir. 1983)). When both parties file motions for summary judgment, each motion must stand on its own. See Huffman v. W. Nuclear, Inc., 486 U.S. 663, 664 n. 11 (1988) (noting that although the defendant “styled its response to respondents’ motion for summary judgment as a cross-motion for summary judgment as well as a memorandum in opposition, [the defendant’s] successful opposition to respondents’ motion is insufficient to establish that it is entitled to summary judgment in its favor”). Here, it is proper for this Court to resolve both the DOJ’s Motion for Summary Judgment and CoA Institute’s Cross-Motion for Summary Judgment because none of the facts underlying either motion are in dispute and the Court may resolve the purely legal issues. Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 11 of 38 6 ARGUMENT I. THE DOJ’S RE-PRODUCTION OF THE RECORD AT ISSUE CONCEDES ALL ISSUES RAISED IN THE COMPLAINT A. The DOJ Voluntarily Abandoned Its Position in Response to CoA Institute’s Complaint As noted, the CoA Institute Complaint asserted three bases to support its claim that the DOJ had violated the FOIA in its treatment of the May 2014 email chain. The DOJ’s subsequent re-production of the email chain and its Motion for Summary Judgment demonstrate that CoA Institute has prevailed on all of its FOIA claims. When the DOJ first produced the email chain at issue in this litigation on March 25, 2016, it treated the email chain as one record but withheld large portions of the record as non- responsive. See Compl. Exs. 3–4. CoA Institute believed the DOJ treatment of the record to be improper and submitted a follow-up FOIA request on July 15, 2016 seeking the entirety of the record so as to prevent the DOJ from asserting that any portion of the record could be considered non-responsive. See Compl. Ex. 1 at 1. Two weeks after CoA Institute filed its July 15, 2016 request, the United States Court of Appeals for the District of Columbia Circuit released its decision in American Immigration Lawyers Association v. Executive Office for Immigration Review, 830 F.3d 667 (D.C. Cir. 2016) [hereinafter AILA]. That decision holds that FOIA “does not provide for . . . redacting nonexempt information within responsive records.” Id. at 677. Instead, the FOIA “compels disclosure of the responsive record—i.e., as a unit—except insofar as the agency may redact information falling within a statutory exemption. . . . FOIA calls for disclosure of a responsive record, not disclosure of responsive information within a record.” Id. CoA Institute brought this binding precedent to the DOJ’s attention during a phone call clarifying the scope of the request and in an email memorializing that phone call. See Compl. Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 12 of 38 7 Ex. 6; Banerjee Decl. ¶ 13 (acknowledging receipt of email memorializing the phone call). However, when the DOJ produced the record to CoA Institute for the second time, it continued to apply redactions bearing the label “non-responsive” and actually expanded the redactions to withhold more information than the first production. See Compl. Ex. 7 at 7–12. It sought to justify its actions by subdividing what had originally been a single record into nine distinct records, eight of which, it alleged, were non-responsive. Id. It was not until CoA Institute was forced to spend the time and money to bring this lawsuit that the DOJ abandoned its position. As noted, the DOJ’s re-production of the email chain on January 18, 2017 no longer subdivides that single record into multiple records, see Valvo Decl. Ex. 1, and its Motion for Summary Judgment states that it is “not withholding any information based on responsiveness.” Mot. for Summ. J. at 15. CoA Institute accordingly has prevailed on these first two bases of its claim. The third component of CoA Institute’s claim is that the DOJ was overbroad in its application of Exemptions 3 and 5 and failed to conduct a segregability analysis with respect to that portion of the production that it originally labelled “Record 7.” Compl. ¶¶ 34–35. The DOJ’s re-production of the email chain in conjunction with its Motion for Summary Judgment demonstrates that the DOJ has now conducted the requisite segregability analysis and removed the overbroad use of exemptions. Compare Compl. Ex. 7 at 9 (so-called “Record 7” withheld in full), with Valvo Decl. Ex. 1 at 3 (proper application of exemptions with non-exempt material released). CoA Institute accordingly has prevailed on this basis of its claim as well. B. CoA Institute Does Not Challenge the Remaining Assertions of FOIA Exemptions in the Re-Produced Email Chain The DOJ dedicates the majority of its Motion for Summary Judgment to defending against claims CoA Institute never raised. When the DOJ produced the email chain for the third Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 13 of 38 8 time on January 18, 2017 it finally conducted a proper segregability analysis and applied valid FOIA exemptions. CoA Institute does not now and has never challenged the application of Exemptions 3, 5, 6, and 7 as properly applied by the DOJ in its third try at producing the requested record. CoA Institute’s Complaint claimed that the DOJ improperly redacted information as non- responsive and that it was overbroad in its use of Exemptions 3 and 5 as to that portion of the email chain labelled “Record 7” in its second production on September 20, 2016. By re- producing the email chain on January 18, 2017 without any non-responsive redactions, with a narrower application of Exemptions 3 and 5, and with the new application of Exemptions 6 and 7, the DOJ effectively has conceded that the email chain as produced on September 20, 2016, which is the subject of the Complaint, was improper. Accordingly, as the agency has conceded the issues presented in the Complaint, CoA Institute does not oppose the DOJ’s Motion for Summary Judgment as to its application of exemptions and redactions in the January 18, 2017 production. C. CoA Institute Intends to Move for Attorney Fees and Costs A case becomes moot “when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” Larsen v. U.S. Navy, 525 F.3d 1, 3 (D.C. Cir. 2008) (quoting Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). This may occur when the plaintiff has “obtained all the relief that [it has] sought.” Monzillo v. Biller, 735 F.2d 1456, 1459 (D.C. Cir. 1984). However, a case is not over if it is “nearly moot.” True the Vote, Inc. v. Internal Revenue Serv., 831 F.3d 551, 561 (D.C. Cir. 2016). Accordingly, even if this Court finds that the DOJ’s voluntary cessation of its improper use of “non-responsive” redactions and segmentation of one record into multiple records has mooted CoA Institute’s claim that the DOJ improperly withheld responsive records, and this Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 14 of 38 9 Court finds that no mootness exception applies (see Section II below), that does not resolve the issue of whether CoA Institute may be awarded fees and costs. See Harvey v. Lynch, 123 F. Supp. 3d 3, 8 (D.D.C. 2015) (“The conclusion that this Court lacks jurisdiction to hear Plaintiff’s case, however, does not dispose of Plaintiff’s request that he be paid his costs for bringing this action.”). CoA Institute has substantially prevailed in this action, as the DOJ has abandoned the three bases upon which CoA Institute sued. Therefore, upon completion of summary judgment proceedings, CoA Institute intends to move for attorney fees and costs. II. COA INSTITUTE’S CLAIM IS NOT MOOT “The mootness doctrine ensures compliance with Article III’s case and controversy requirement by limiting federal courts to deciding actual, ongoing controversies. Accordingly, mootness must be assessed at all stages of the litigation to ensure a live controversy remains. A case is moot if [the court’s] decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.” Aref v. Lynch, 833 F.3d 242, 250 (D.C. Cir. 2016) (internal quotation marks and alterations omitted) (citing Am. Bar Ass’n v. Fed. Trade Comm’n, 636 F.3d 641, 645 (D.C. Cir. 2011), and 21st Century Telesis Joint Venture v. Fed. Commc’ns Comm’n, 318 F.3d 192, 198 (D.C. Cir. 2003)). Two exceptions to the mootness doctrine are relevant here. First, a court may retain jurisdiction where the mootness is created by the defendant’s voluntary cessation of the challenged behavior. Second, a court may retain jurisdiction if the challenged behavior is capable of repetition yet evading review. Both of these exceptions apply in this case. Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 15 of 38 10 A. The DOJ’s Voluntary Change in Position after CoA Institute Filed Its Complaint Demonstrates that this Case Is Not Moot “[A] defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). “If it did, the courts would be compelled to leave the defendant free to return to his old ways.” Id. (quoting City of Mesquite, 455 U.S. at 289) (alterations omitted). The Supreme Court has established a “stringent” standard for when a defendant may moot a claim through its voluntary conduct. Id. The party asserting mootness bears the “heavy burden” of establishing that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Id. (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968)). The Supreme Court has established that the policy behind this exception is to resolve the “dispute over the legality of the challenged practices[,] [which] . . . together with a public interest in having the legality of the practices settled, militates against a mootness conclusion.” United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953) (citations omitted). Despite voluntary cessation, a case may still be moot if (1) “there is no reasonable expectation that the alleged violation will recur” and (2) “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (alterations and citations omitted). Although government actors receive more leeway on this standard because it is presumed they will act lawfully, see, e.g., Citizens for Responsibility & Ethics in Wash. v. Secs. & Exchange Comm’n, 858 F. Supp. 2d 51, 61–62 (D.D.C. 2012) (collecting cases) [hereinafter CREW v. SEC], that presumption has more force where there has been a “formally announced change[] to official government policy,” Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 16 of 38 11 Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009), and less force where there is “no certainty” of government forbearance or in fact an announced government intention to resume the challenged action. City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 & n. 11 (1982). In this case, the DOJ has failed to carry its “heavy burden” that the voluntary cessation exception does not apply. As an initial matter, the DOJ barely supports its assertion that mootness applies at all. See Mot. for Summ. J. at 14–15 (supplying a scant two paragraphs and citing no cases in support of its claim). The DOJ waited until after CoA Institute filed suit—in fact, until the very day its Motion for Summary Judgment was due—to reverse its position and concede that the entirety of the email chain, as CoA Institute had claimed from the beginning, was responsive to its FOIA request. Further, although the DOJ is no longer attempting to segment the email chain into multiple records as a basis for redacting information, Mot. for Summ J. at 15, it does not explicitly concede that the email chain is one record. Absent a court decision that the DOJ’s use of “non-responsive” redactions and treatment of one record as many records is improper, the “dispute over the legality of the challenged practices” and the “public interest in having the legality of the practices settled” will remain unresolved. W.T. Grant Co., 345 U.S. at 632. In the context of records-release cases, the D.C. Circuit has held that an agency cannot so easily evade judicial review of its behavior. See Byrd v. Envtl. Prot. Agency, 174 F.3d 239, 244 (D.C. Cir. 1999) (holding that despite an agency releasing records under the Federal Advisory Committee Act the case was not moot because absent a ruling, the agency was free to return to its prior position); Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988) (“[T]he release of the specific documents that prompted the [FOIA] suit” does not moot the case Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 17 of 38 12 if agency behavior “evidences a policy or practice of delayed disclosure or some other failure to abide by the terms of the FOIA[.]”). Here, the DOJ originally failed to abide by the terms of the FOIA, as interpreted by AILA, even though that case was brought to its attention at the administrative stage, and the agency changed its behavior only after CoA Institute brought suit. There is no indication in the record that the agency will not act in a similarly improper manner in the future. This Court should not presume that the DOJ will refrain from returning to its old ways. District courts in this circuit have cited Sossamon for the proposition that “[w]ithout evidence to the contrary, we assume that formally announced changes to official governmental policy are not mere litigation posturing.” See, e.g., Belmont Abbey Coll. v. Sebelius, 878 F. Supp. 2d 25, 36–37 (D.D.C. 2012); CREW v. SEC, 858 F. Supp. 2d at 51; Nat’l Ass’n of Home Builders v. Salazar, 827 F. Supp. 2d 1, 5 & n.5 (D.D.C. 2011) (“Our own Court of Appeals has not spoken directly to this issue.”). Here, the DOJ has issued a change to government policy that, if implemented as written, will ensure the continuation of the same offending behavior challenged in this litigation. One week before filing its Answer and Motion for Summary Judgment, the DOJ released new guidance that formally allows the DOJ to treat records in the same way that it did when it produced the email chain at issue in this case to CoA Institute on September 20, 2016. Valvo Decl. ¶¶ 10–11. In particular, the guidance states that “based on the subject of a particular FOIA request, an entire string of emails, a single email within a string of emails, or a paragraph within a single email could potentially constitute a ‘record’ for purposes of the FOIA.” DOJ Guidance at 2. It also advises that a “paragraph within an email or document could potentially constitute a distinct record, but only if the subject of the request is sufficiently specific to pertain only to that paragraph and the subject of the paragraph is sufficiently distinct from the surrounding Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 18 of 38 13 paragraphs to constitute a distinct record.” Id. at 3. Finally, it states that, “[i]f the individual emails within a string of emails have been divided into separate ‘records,’ then each individual responsive email should be counted when calculating the number of ‘records’ processed or withheld.” Id. at 3. Although this guidance document was issued after the DOJ’s administrative decision in this case and CoA Institute’s Complaint, it was issued before the DOJ made the determination in this litigation to reverse course and remove the offending “non-responsive” redactions and notations that broke the email chain into multiple records. The guidance outlines that the DOJ’s institutional position—and its advice to other agencies that follow its FOIA guidance—is that the exact behavior challenged in this case is acceptable. See Newport Aeronautical Sales v. Dep’t of the Air Force, 684 F.3d 160, 164 (D.C. Cir. 2012) (A claim is not moot when the agency “has no intention of abandoning th[e] policy because it does not believe the policy violates FOIA.”). The guidance’s repeated invocation of emails and email chains speaks directly to the issues at bar and is evidence that the DOJ should not receive the presumption that a government actor will not return to the challenged behavior. As this Court cannot be assured that the DOJ’s voluntary cessation of the challenged behavior only in this case will prevent it from returning to its old ways once the case is over, and because the DOJ’s official FOIA guidance indicates that it likely will return to its ways, CoA Institute’s claims are not moot. B. The DOJ’s Actions Are Capable of Repetition yet Evading Review A court should also deny a defendant’s assertion of mootness if the injury is “capable of repetition yet evading judicial review.” Honeywell Int’l, Inc. v. Nuclear Regulatory Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010) (quoting S. Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 515 (1911)). This exception has two conjunctive prongs. First, “the Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 19 of 38 14 challenged action must be too short to be fully litigated prior to cessation or expiration.” Id. Second, “there must be a ‘reasonable expectation that the same complaining party will be subject to the same action again.’” Id. (citation omitted). Both of these prongs are met in this case. 1. The DOJ’s challenged behavior in this case is too short to be fully litigated because the agency is free, as it did here, to reverse its position after a complaint has been filed but before a court rules The D.C. Circuit “has held that agency actions of less than two years’ duration cannot be ‘fully litigated’ prior to cessation or expiration, so long as the short duration is typical of the challenged action.” Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 322 (D.C. Cir. 2009) (citations omitted); see also Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (citing two-year rule in procurement context); Turner v. Rogers, 564 U.S. 431, 440 (2011) (twelve-month imprisonment “too short to be fully litigated”). In McDonnell Douglas Corp. v. National Aeronautics & Space Administration, a district court in this Circuit made the sweeping claim that the “‘capable of repetition, yet evading review’ doctrine does not apply to FOIA disclosures.” 102 F. Supp. 2d 21, 23 (D.D.C. 2000). The McDonnell Douglas court relied on Gulf Oil Corp. v. Brock, 778 F.2d 834, 839 (D.C. Cir. 1985). An examination of both Gulf Oil and McDonnell Douglas, however, reveals that those cases should be distinguished from the instant case. Gulf Oil was a “reverse FOIA case” where Gulf Oil sued the Secretary of Labor to prevent the disclosure of information about its corporate headquarters. 778 F.2d at 835. The court found that Gulf Oil’s right to litigate any disclosure of its records had been protected: The prolonged proceedings of this case are testimony that the first requirement under the “capable of repetition, yet evading review” exception is not met with regard to FOIA disclosures. [The Department of Labor] notified Gulf of [the FOIA] request for the 1973 plan, gave Gulf an opportunity to oppose the disclosure, and notified Gulf of the decision to disclose and agreed not to disclose the plan pending a judicial determination on the merits. When [the requester] withdrew its request eleven years later, the document still had not been disclosed. Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 20 of 38 15 Gulf will undoubtedly be accorded a similar opportunity to litigate fully any future decision to disclose a document. Id. at 839 (emphasis added). McDonnell Douglas also was a “reverse FOIA case” and that court found that—like Gulf Oil—McDonnell Douglas had been provided a full opportunity to litigate any disclosure of its records. 102 F. Supp. 2d at 23 (“Although this case is moot, it is important to note that [McDonnell Douglas] ‘will undoubtedly be accorded a similar opportunity to litigate fully any future decision to disclose a document.’”) (quoting Gulf Oil, 778 F.2d at 839). In this case, by contrast, CoA Institute has not been afforded an opportunity to fully litigate its claim. Instead, the DOJ has attempted to cut the case short by voluntarily ceasing its offending behavior without an admission of wrongdoing or judicial determination of the legality of its prior conduct. As discussed above and further below, this court can reasonably expect that CoA Institute will be subject to the same actions again from the DOJ, but when CoA Institute brings suit to challenge those actions, the DOJ can simply voluntarily withdraw the offending claims of “non-responsive” and the improper segmentation of records as it did here. Thus, the short duration of the DOJ’s offending conduct precludes judicial review (i.e., the DOJ will always be able to produce records in the administrative setting with offending redactions and segmentation, and then re-produce those records in litigation without the offending redactions and segmentation before the court can rule). See Ctr. for the Study of Servs. v. Dep’t of Health & Human Servs., 130 F. Supp. 3d 1, 8–9 (D.D.C. 2015) (“Given the time required for a FOIA case to fully ripen and the Government’s statement that [it will continue its redaction practices] . . . the Court has little difficulty concluding that this action is not moot.”); cf. World Publ’g Co. v. Dep’t of Justice, No. 09-574, 2011 WL 1238383, at *1 n.2 (N.D. Okla. Mar. 28, 2011) (case not moot because “[d]ue to speedy trial laws, federal indictees awaiting trial do not generally Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 21 of 38 16 maintain such status long enough for a civil FOIA lawsuit to take shape”). This case, therefore, meets the first prong of the “capable of repetition, yet evading review” test. 2. CoA Institute is reasonably expected to be subject to the same treatment again because it is a frequent FOIA requester and litigator, and because the DOJ has not abandoned its policy In addition to a claim being too short to fully litigate, to qualify for the “capable of repetition, yet evading review” mootness exception there “must be a ‘reasonable expectation that the same complaining party will be subject to the same action again.’” Honeywell, 628 F.3d at 576 (alterations and citation omitted). The “same action” need not be identical in fact but may instead be the same legal wrong stemming from “particular agency policies, regulations, guidelines, or recurrent identical agency actions.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 324 (D.C. Cir. 2014) (citation omitted). The Supreme Court has provided that it examines “whether the controversy [is] capable of repetition and not . . . whether the claimant [has] demonstrated that a recurrence of the dispute was more probable than not.” Honig v. Doe, 484 U.S. 305, 318 n. 6 (1988) (emphasis in original). A plaintiff can move beyond mere “conclusory assertions” and “creat[e] a reasonable expectation that the [defendant] will repeat its purportedly unauthorized actions” by showing either that the defendant has “a policy it ha[s] determined to continue . . . [or] a consistent pattern of behavior[.]” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 187–88 (1979) (citations omitted). This case meets the applicable standard because CoA Institute is a frequent FOIA requester and litigator, has more than twenty FOIA requests currently pending at the DOJ, and the DOJ has not recanted the disputed legal position but instead has issued guidance reaffirming its position that the challenged behavior is acceptable. See, e.g., Cause of Action v. Fed. Trade Comm’n, 799 F.3d 1108 (D.C. Cir. 2015); Cause of Action v. Internal Revenue Serv., 125 F. Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 22 of 38 17 Supp. 3d 145 (D.D.C. 2015); Cause of Action v. Treasury Inspector Gen. for Tax Admin., 70 F. Supp. 3d 45 (D.D.C. 2014). CoA Institute regularly requests access under the FOIA to the records of federal agencies. Compl. ¶ 4. Other than the request at issue in this case, CoA Institute currently has twenty-one FOIA requests pending with the DOJ. Valvo Decl. ¶ 12. In addition to those requests, CoA Institute is currently in litigation with the DOJ over request numbers 10816 and 10829. See CoA Inst. v. Internal Revenue Serv. & Dep’t of Justice, No. 15-cv-770 (D.D.C. filed May 26, 2015). That litigation has resulted in more than a dozen rolling productions and several hundreds of records, many of which were improperly redacted in the same manner as the original records underlying this case. Valvo Decl. ¶¶ 4–5; Compl. Exs. 2–4. In addition, many of the pending FOIA requests with the DOJ seek access to email communications, which the DOJ will have occasion to treat in the same manner it did here. Valvo Decl. ¶ 14. CoA Institute’s exposure to the same treatment is magnified by the fact that, in this litigation, the DOJ has not acknowledged that its use of “non-responsive” redactions and its segmentation of one record into multiple records was inappropriate. Quite the opposite, the DOJ has issued guidance reaffirming the legal position it took at the administrative stage. Valvo Decl. ¶ 10–11; DOJ Guidance; see also Ill. State Bd. of Elections, 440 U.S. at 188 (A defendant with “a policy it ha[s] determined to continue” increases the “reasonable expectation” that a plaintiff will be injured again.). In Consumers Council of Missouri v. Department of Health & Human Services, a district court acknowledged that it was plausible for a FOIA requester to meet the second prong of this exception to mootness, even though in “most cases in which courts have found FOIA claims moot by the voluntary production of documents, the ‘capable of repetition yet evading review’ exception could not apply because there was no reason that the plaintiff would again request Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 23 of 38 18 records from the same agency once all the information has been produced.” No. 14-1682, 2015 WL 1868703, at *2 (E.D. Mo. Apr. 23, 2015). In that case, the court ultimately found the requester did not meet the test, but for reasons that are inapplicable here. First, the court found the agency had established processes to mitigate the requesters’ concerns about delay. Id. at *3. Second, the court noted the agency changed its regulation to increase the proactive release of the information at issue. Id. The court concluded that “[i]n light of these prospects for change with respect to the release of information . . . , the Court agrees with [the Department of Health and Human Services (“HHS”)] that at this point, Plaintiff has no basis to contend it will be subject to the same alleged injury.” Id. The posture of this case shows that, unlike the HHS in Consumers Council of Missouri, the DOJ’s refusal to install remedial measures or recant its previous position only increases the risk that CoA Institute will again be subject to the same offending behavior in future cases. Given that the DOJ’s voluntary cessation of the challenged behavior does not preclude it from repeating its offending behavior, the DOJ’s announced policy that explicitly grants it a license to engage in the offending behavior again, and the fact that CoA Institute regularly submits FOIA requests to the DOJ, CoA Institute’s injury is capable of repetition yet evading review. Accordingly, its claim against the DOJ for using “non-responsive” as a redaction tool and improperly segmenting one record into multiple records is not moot. III. THE DOJ’S USE OF “NON-RESPONSIVE” AND SEGMENTATION OF ONE RECORD INTO MULTIPLE RECORDS IS IMPROPER As the case is not moot, the Court should grant CoA Institute’s Cross-Motion for Summary Judgment by finding that the DOJ violated the FOIA by redacting information as non- responsive and improperly segmenting one record into multiple records. Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 24 of 38 19 The FOIA provides requesters access to records, not information. AILA, 830 F.3d at 677. The FOIA allows access to “agency records,”3 and there is a great deal of jurisprudence interpreting that term. See, e.g., Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144–45 (1989). This case presents the unresolved antecedent question of the definition of a “record.” Following the D.C. Circuit’s decision in AILA, this question is now closely tied to agency use of “non- responsive” as a basis for withholding specific information. Before AILA, agencies—including the DOJ as exemplified in this case—took the position that they could redact material within a record on the basis that the subject matter of the redacted content was not responsive to the request.4 The D.C. Circuit has now foreclosed that practice. See AILA, 830 F.3d at 677 (“The statute does not provide for withholding responsive but non- exempt records or for redacting nonexempt information within responsive records.”). Instead, as demonstrated by the DOJ’s behavior in this case and its new guidance, agencies believe they are empowered to treat individual sections or portions of records as actually separate and distinct individual records and then withhold those supposedly distinct records in their entirety as “non- responsive” to the request. Such behavior makes a mockery of AILA. A. The DOJ’s Definition of a Record Should Be Reviewed De Novo Courts should review the definition of “record” that agencies apply during informal adjudications of FOIA requests de novo because Congress has not entrusted the administration of FOIA to any single agency. 3 Federal agencies maintain some types of records that are not agency records subject to the FOIA. See, e.g., Goland v. Cent. Intelligence Agency, 607 F.2d 339 (D.C. Cir. 1978) (agency may possess “congressional records” not subject to FOIA); Bureau of Nat’l Affairs, Inc. v. Dep’t of Justice, 742 F.2d 1484 (D.C. Cir. 1984) (agency may possess “personal records” not subject to the FOIA). The distinction between an agency record and a non-agency record is not at issue in this case because the requested material concerns an email conversation involving DOJ employees (and thus is material created by the agency) and the record of that email conversation is under the DOJ’s control. 4 See, e.g., Compl. Ex. 2 (redacting portions of a report on DOJ’s practices on attorney transfers and details that did not relate to details to the White House, which was the subject of the FOIA request). Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 25 of 38 20 If a statutory term is ambiguous and an agency provides its interpretation of that statutory term in a proceeding that has the force of law, courts defer to the agency’s interpretation so long as the interpretation is reasonable. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). This doctrine has been recognized as applying in formal rulemakings, notice-and- comment rulemakings, and formal adjudications; however, as relevant to this case, informal adjudications have not been treated uniformly. See Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 296 (2009) (Scalia, J., concurring) (noting that applying “Chevron deference [to informal adjudications] ha[s] produced so much confusion in the lower courts”); id. at n.* (collecting cases). If Chevron does not apply to an agency interpretation of an ambiguous statutory term, courts apply the less-deferential Skidmore test. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (court considers agency approach so long as it has the “power to persuade”). Courts deny Chevron deference to agency interpretations of the FOIA because the statute applies across the government and is not organic to any single agency. Therefore, the “meaning of FOIA should be the same no matter which agency is asked to produce its records.” Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 613 (D.C. Cir. 1997) [hereinafter Tax Analysts v. IRS]. As such, courts “owe no particular deference to an agency’s interpretation of FOIA.” Cause of Action, 799 F.3d at 1115 (citation and alterations omitted); see also Al-Fayed v. Cent. Intelligence Agency, 254 F.3d 300, 307 (D.C. Cir. 2001) (“Indeed, it is precisely because FOIA’s terms apply government-wide that we generally decline to accord deference to agency interpretations of the statute, as we would otherwise do under Chevron[.]”). Courts have refused to provide deference to agency interpretations of other statutory terms in FOIA. See Cause of Action, 799 F.3d at 1115 (no deference to agency interpretation of Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 26 of 38 21 fee provisions); Al-Fayed, 254 F.3d at 307 (no deference to agency interpretation of “compelling need”); Reporters Comm. for Freedom of Press v. Dep’t of Justice, 816 F.2d 730, 734 (D.C. Cir. 1987) (no deference to agency interpretation of exemptions) rev’d on other grounds, 489 U.S. 749 (1989). This rejection of deference to interpretations of statutory terms is contrasted with the deference the FOIA demands and courts have recognized for the application of exemptions. See 5 U.S.C. § 552(a)(4)(B) (affording “substantial weight” to agency affidavits); Campbell v. Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998) (“Because the FBI specializes in law enforcement, its decision to invoke exemption 7 is entitled to deference.”). The definition of “record” is a statutory term and agency interpretations of that term accordingly should receive no deference so that the “meaning of FOIA [will] be the same no matter which agency is asked to produce its records.” Tax Analysts v. IRS, 117 F.3d at 613. B. The Segmentation of a Single Record into Nine Records Was Improper An email chain is one record. This conclusion is mandated by both a close reading of the statute and because the person who creates the final email in a chain has control over the contents of the entire chain in the record that he or she is creating. To find otherwise is to invite the type of abuse the DOJ demonstrated in this case in its second production of the email chain. See Compl. Ex. 7 at 7–12 (DOJ claiming email headers are separate records than the body of the email). Agencies are required to process requests for agency records in the following sequence. “[F]irst, identify responsive records; second, identify those responsive records or portions of responsive records that are statutorily exempt from disclosure; and third, if necessary and feasible, redact exempt information from the responsive records.” AILA, 830 F.3d at 677. The AILA court recognized that this left open the threshold question of what constitutes a record, but chose not to resolve the question. Id. at 678–79. Nevertheless, it found “it difficult to believe Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 27 of 38 22 that any reasonable understanding of a ‘record’ would permit withholding an individual sentence within a paragraph within an email on the ground that the sentence alone could be conceived of as a distinct, nonresponsive ‘record.’” Id. at 679. This caution by the AILA court must be taken into account, as any approach that would allow the piecemeal segmentation of a record into multiple sub-units would open the door to abuse, as shown by the DOJ’s behavior in this case. 1. The Definition of “Record” under FOIA The FOIA is codified with the Administrative Procedure Act (“APA”). The APA definitions section does not define the term “record.” See 5 U.S.C. § 551. The FOIA itself, however, defines a “record” as, inter alia, “any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format[.]” Id. § 552(f)(2)(A).5 The FOIA’s definitions in Section 552 provide further clarity on and are more specific than the APA’s definitions in Section 551. Compare id. § 551 (“For the propose of this subchapter”), with id. § 552(f) (“For the purposes of this section”); compare also id. § 551(1) (defining agency), with id. § 552(f)(1) (beginning with and building upon the APA definition of agency). The AILA court appears to have missed this distinction. See 830 F.3d at 678 (“Although FOIA includes a definitions section, id. § 551, that section provides no definition of the term ‘record.’ Elsewhere, the statute describes the term ‘record’ as ‘includ[ing] any information that would be an agency record . . . when maintained by an agency in any format, including an electronic format,’ id. § 552(f)[.]”) (alteration in original). The AILA court found that the statutory definition “provides little help in understanding what is a ‘record’ in the first place” and 5 The definition also includes “any information described under subparagraph (A) that is maintained for an agency by an entity under Government contract, for the purposes of records management.” 5 U.S.C. § 552(f)(2)(B). Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 28 of 38 23 then turned to the Privacy Act, Presidential Records Act, and Federal Records Act in search of the term’s treatment in analogous statutes. Id. This Court should conduct its analysis within the context of the FOIA’s text because that text contains two clauses that are sufficient to establish a definition of the term and to discern congressional intent. See Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) (“The starting point in discerning congressional intent is the existing statutory text[.]”). The first clause of the definition—“any information that would be an agency record subject to the requirements of this section”—describes the type of material that qualifies as a record. This clause imports the Supreme Court’s decision in Tax Analysts, which requires that an agency either (1) “create or obtain the requested materials as a prerequisite” to it being subject to the FOIA, and (2) “be in control of the requested materials at the time the FOIA request is made.” 492 U.S. at 144–45.6 The second clause of the definition—“when maintained by an agency in any format, including an electronic format”—describes the status of that material in the agency’s hands just before the requester submits a request.7 As a first pass, therefore, a record under FOIA is material maintained by the agency in whatever format the agency maintains that material. This understanding entails that, contrary to the DOJ guidance, records exist objectively— they are not epiphenomena of the intent of the requester and the interpretation of that intent by the agency official conducting the search. Notably, a requester does not have a right to ask an agency to create or manipulate a record in response to a FOIA request because only records that 6 There is no dispute in this case that the email chain in question is “information that would be an agency record subject to the requirements of this section.” 7 See N. Y. Times Co. v. Nat’l Aeronautics & Space Admin., 920 F.2d 1002, 1005 (D.C. Cir. 1990) (audio tapes are a “record” because “FOIA makes no distinction between information in lexical and that in non-lexical form; all information is equally covered by the general norm of disclosure, and equally subject to the same specific exemptions therefrom.”). Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 29 of 38 24 exist in fact must be produced. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980) (FOIA “does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained.”); Goland, 607 F.2d at 353 (An “agency is not required to reorganize its files in response to a plaintiff’s request[.]”) (quotation marks, alterations, and citation omitted). But see Schladetsch v. Dep’t of Housing & Urban Dev., No. 99-0175, 2000 WL 33372125, at *3 (D.D.C. Apr. 4, 2000) (“Because HUD has conceded that it possesses in its databases the discrete pieces of information which Mr. Schladetsch seeks, extracting and compiling that data does not amount to the creation of a new record.”). As a corollary, therefore, the agency should be bound to process the material responsive to a request in the form and format that the agency currently maintains that material; it should not be allowed artificially to divide an existing record into multiple records whenever it wishes to withhold information it does not want to produce. The current definition of “record” in 5 U.S.C. §552(f)(2) was added to the FOIA by the Electronic Freedom of Information Act Amendments of 1996. Pub. L. 104-123, § 3, 110 Stat. 3048, 3049. That definition was added to ensure that electronic records, in addition to paper documents and other tangible objects, were covered. See H.R. Rep. 104-795, 18 (1996) (“Records which are subject to the FOIA shall be made available under the FOIA when the records are maintained in electronic format. This clarifies existing practice by making the statute explicit on this point.”); id. at 11 (“FOIA’s efficient operation requires that its provisions make clear that the form or format of an agency record constitutes no impediment to public accessibility.”); S. Rep. 104-272, 27 (1996) (FOIA “requires that Federal agencies provide records to requesters in any form or format in which the agency maintains those records[.]”) Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 30 of 38 25 (emphasis added). Thus, it was Congress’s intent to provide access to materials in the form and format the agency currently maintains them. In light of the above, a complete and proper definition of a “record” under the FOIA is (1) any material containing information, (2) created or obtained by an agency, (3) within an agency’s control when a request is submitted, and (4) in its full native form and format as maintained by an agency at the time of a request, “i.e., as a unit.” AILA, 830 F.3d at 677. 2. The DOJ’s Content and Subject Matter Based Definition of a Record Is Untenable The DOJ’s approach to defining a record is that the “nature of a FOIA ‘record’ is defined by both the content of a document and the subject of the request.” DOJ Guidance at 2 (emphasis in original). The DOJ advises agencies to look to the Privacy Act’s definition of a record because it: allows for a more fine-tuned, content-based approach to the decision, which applies irrespective of the physical attributes of a document. Thus, a “record” can potentially constitute an entire document, a single page of a multipage document, or an individual paragraph of a document. Moreover, based on the subject of a particular FOIA request, an entire string of emails, a single email within a string of emails, or a paragraph within a single email could potentially constitute a “record” for purposes of the FOIA. Id. As an initial matter, this approach is completely divorced from and makes no attempt to reconcile with the statutory text. An examination of the example in the DOJ’s guidance exposes the flaw in its position. The guidance states: For example, if a document consists of a list of summaries of complaints against immigration judges organized by the name of each judge, and the subject of the FOIA request is “complaints against all immigration judges” then the entire document is the “record” for purposes of that FOIA request because the entire document is a “collection or grouping of information” on the subject of the request. Conversely, if the FOIA request specifically concerns “complaints against Judge Smith,” then only the complaint summaries concerning Judge Smith Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 31 of 38 26 would constitute the “record” for purposes of that FOIA request, as only those portions would be the “collection or grouping of information” on Judge Smith. Id. at 2–3. This approach violates the first principle of AILA: FOIA provides access to records and exemptions are applied only to information within those records. 830 F.3d at 677. A proper formulation of the DOJ’s example would be as follows. If there is a document that contains a list of summaries of complaints, then that entire document, as a unit, is a record because that is the form and format of that information that the agency maintains. Thus, if a requester seeks access to records of complaints against all immigration judges, then the entire record is responsive and must be produced, subject to any applicable exemptions. If, however, a requester seeks access to complaints against Judge Smith, then a search for records responsive to that request would return the same document—and that document must be produced “as a unit,” also subject to any applicable exemptions. AILA, 830 F.3d at 677. By contrast, the DOJ guidance provides that it is the process of interpreting the scope of the request and the process of searching that creates the “record” for each case. It states that “there are a range of ways to define what is a ‘record,’ and that it is the very process of searching for what has been requested by each requester that forms the basis for the determination.” DOJ Guidance at 2. In addition to violating AILA, the DOJ position creates incongruities with other areas of FOIA law. First, it conflicts with the rule that the “meaning of FOIA should be the same no matter which agency is asked to produce its records.” Tax Analysts v. IRS, 117 F.3d at 613. This rule would be violated because, for example, one agency may treat its email chains as single records, whereas another agency may wish to segment email chains into multiple records on a case-by- case basis. Even the same email chain within a single agency may be treated differently, depending upon the nature of the request. Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 32 of 38 27 Second, the DOJ guidance produces incoherence with the rule that requesters may only submit requests for records that already exist at the time of their request. See Judicial Watch, Inc. v. Dep’t of Commerce, 583 F.3d 871, 874 (D.C. Cir. 2009) (“FOIA . . . applies only to existing records[.]”) (citation omitted); H.R. Rep. 104-795, 6 (congressional report accompanying 1996 amendments stating FOIA provides access to “existing records of Federal departments and agencies”). If, however, a “record” does not exist until the agency defines it during its search in response to a request, how can that record also be said to exist before the request is submitted?8 The DOJ might respond that the item that needs to pre-exist a request is a document and not the “record,” as it wishes to define it. See DOJ Guidance (using term “document” thirty-two times). But that substitution of terms offends statutory interpretation. The term “document” only appears in FOIA six times, all in reference to the fees agencies may charge for document handling. The term “record” appears nearly one-hundred times and in all of the operative subsections discussing search and disclosure. See, e.g., 5 U.S.C. § 552(a)(2)(D) (requiring proactive disclosure of “copies of records”); id § 552(a)(3)(A) (agencies must disclose upon “any request for records”); id. § 552(a)(3)(A) (requesters must “reasonably describe[] such records”); id. § 552(a)(3)(D) (agencies must search “agency records for the purpose of locating those records which are responsive to a request”). In any event, it is records to which a FOIA requester has a right, not documents. Id. § 552(a)(3)(A) (“[E]ach agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.”). 8 See Aristotle, Metaphysics, Book IV, pt. 3 (350 BC), available at http://bit.ly/2kEdTpp (“[T]he most certain of all principles” is that “it is impossible for anyone to believe the same thing to be and not to be” because “it is impossible that contrary attributes should belong at the same time to the same subject[.]”). Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 33 of 38 28 The DOJ’s position also creates a conflict with the FOIA’s judicial-review provision. The FOIA provides that venue for a FOIA lawsuit is proper, inter alia, in the district “in which the agency records are situated[.]” Id. § 552(a)(4)(B). In a case where the requester is seeking to bring suit based on delay and before the agency has begun or completed its search, the DOJ’s position, under its new guidance, logically must be that the agency has not yet defined the “records” in that case. If that position is correct, the records are not yet “situated” anywhere and the venue option is nullified. Elementary cannons of statutory construction prohibit such a conclusion. See Duncan v. Walker, 533 U.S. 167, 174 (2001) (Courts should construe meaning “to give effect, if possible, to every clause and word of a statute.”) (internal quotation marks and citation omitted); Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (A court should “interpret [a] statute as a symmetrical and coherent regulatory scheme, and fit, if possible, all parts into an harmonious whole.”) (internal quotation marks and citations omitted); see generally Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174–83 (1st ed. 2012) (discussing the surplusage and harmonious- reading cannons). The more natural and harmonious reading of the FOIA is that records must already exist in fact within an agency’s control before a request is submitted, wholly apart from the subject matter of the request and the agency’s search. This would harmonize all of the subsections listed above. The agency would be able to proactively disclose a record, a requester would be able to seek access to it and could reasonably describe it, and venue would be proper wherever the record was situated. 3. An Email Chain Is One Record Under the FOIA, an email chain is one record because the final email in that chain quotes and incorporates previous emails into a single whole, i.e., a unit. Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 34 of 38 29 The incorporation of previously distinct records into a new, larger record is common practice and does not counsel in favor of allowing an agency to later segment the whole record whenever it wishes to avoid disclosure of the various parts of that record. For example, an agency may write a report and append to that report various exhibits, such as a letter or a memorandum. The report as a whole (i.e., with its exhibits) constitutes a record. Although the various exhibits, if created or received by the agency, are standalone records in their original form, once they are appended to the report they become a portion of that larger record. In that situation, it would be inappropriate (unless a recognized FOIA exemption applied) for an agency to produce the report and withhold the exhibits (or some of the exhibits) simply because the exhibits contained a different subject matter than the report proper or also existed as standalone records. In effect, the DOJ concedes this much. See DOJ Guidance at 1 (“[T]he requester might seek a specific report. The agency will search for the requested report and when it locates it, the entirety of the report will be the ‘record’ that is processed.”). The same result should apply to an email chain. An email chain is created whenever a user replies to an email and the email program automatically appends to that email the original or previous email(s) in the discussion. The most recent email in the chain is akin to a report with multiple exhibits attached to it, and, like a complete copy of a report, the email chain (unless deleted) is stored on the computer as a unit. If it is later viewed or printed, the entirety of the email chain, not just one element in the chain, will be visible. Another consideration counsels in favor of this understanding. When replying to an email, it is possible to alter or remove content in the previous emails. The fact that it is possible to do so means that the creator of the final email in the chain has control over the final content of the record, and that content may differ from the individual emails in the chain as originally sent. Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 35 of 38 30 A review of the email chain at issue in this case illustrates these points. See Valvo Decl. Ex. 1. When Ms. Wolfinger created an email on May 22, 2014 at 4:17 PM, that email constituted a single record containing (1) Ms. Wolfinger’s email response to an email written by Ms. Bringer, (2) Ms. Bringer’s email message from 4:15 PM,9 and (3) six additional emails covering five additional pages. When Ms. Wolfinger sent her final reply email to Ms. Bringer she created an email chain that quoted and incorporated all of the previous emails into one new single record. That email chain, as a unit, was created by the agency, was maintained as a unit in the agency’s record-keeping system, and was in the agency’s control when CoA Institute requested access to it. It constituted a single record and was produced as such in the DOJ’s original production on March 25, 2016. The DOJ’s subsequent treatment of the email chain at issue demonstrates the danger of the DOJ’s current guidance. In response to CoA Institute’s original Request #10874, the DOJ produced the email chain as a single record with multiple redactions bearing the mark “non- responsive.” See Compl. ¶ 7; Compl. Exs. 2–3. Once it was faced with AILA’s direction that the use of “non-responsive” was improper, the DOJ attempted an alternative method to withhold information by claiming that the email chain was multiple records. That duplicity reveals that the DOJ’s true position is that an email chain is one record, but that it will manipulate that understanding if it is a convenient way to withhold information. The DOJ would have this Court believe that a single email chain is one record or nine records depending upon the result it wishes to reach. That position cannot stand. 9 Valvo Decl. Ex. 1 at 1 (note “-----Original Message-----”). Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 36 of 38 31 CONCLUSION AND RELIEF SOUGHT For the foregoing reasons, this Court should (1) grant DOJ’s Motion for Summary Judgment as to the application of exemptions in the January 18, 2017 production; (2) find that CoA Institute’ claims regarding the use of “non-responsive” redactions and segmentation of one record into multiple records is not moot; (3) grant CoA Institute’s Cross-Motion for Summary Judgment finding DOJ’s use of “non-responsive” redactions and segmentation of one record into multiple records is improper; and (4) order briefing on attorney fees and costs. Date: February 8, 2017 Respectfully submitted, /s/ R. James Valvo, III R. James Valvo, III D.C. Bar No. 1017390 Lee A. Steven D.C. Bar. No. 468543 CAUSE OF ACTION INSTITUTE 1875 Eye St., NW, Suite 800 Washington, DC 20006 Telephone: (202) 499-4232 Facsimile: (202) 330-5842 james.valvo@causeofaction.org lee.steven@causeofaction.org Counsel for Plaintiff Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 37 of 38 32 CERTIFICATE OF SERVICE I hereby certify that, on February 8, 2017, I caused the foregoing document to be electronically filed with the Clerk of the Court for the United States District Court for the District of Columbia by using the ECF system, thereby serving all persons required to be served. Date: February 8, 2017 /s/ R. James Valvo, III R. James Valvo, III Case 1:16-cv-02226-RBW Document 13 Filed 02/08/17 Page 38 of 38 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CAUSE OF ACTION INSTITUTE, ) ) Plaintiff, ) ) v. ) No. 1:16-cv-2226-RBW ) UNITED STATES DEPARTMENT OF JUSTICE ) ) Defendant. ) ________________________________________________) PLAINTIFF’S STATEMENT OF UNDISPUTED MATERIAL FACTS Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 7(h) of the Local Civil Rules of the United States District Court for the District of Columbia, Plaintiff Cause of Action Institute (“CoA Institute”) hereby submits the following statement of undisputed materials facts in support of its response and cross-motion for summary judgment. 1. On July 15, 2016, CoA Institute sent a Freedom of Information Act (“FOIA”) request to Defendant Department of Justice’s (“DOJ”) Tax Division (“DOJ-Tax”). Compl. ¶ 6, Ex. 1. The request sought two records concerning the detailing of DOJ attorneys to the Office of the White House Counsel. Compl. ¶ 6, Ex. 1. CoA Institute requested these records in their “entirety.” Compl. ¶ 8; see also Compl. ¶¶ 9–10. 2. The two specific records requested in the July 15, 2106 FOIA request had been previously processed and produced by DOJ-Tax in response to another CoA Institute FOIA request, which is not the subject of this litigation. Compl. ¶ 7; Compl. ¶ 7 n.1, Ex. 4. DOJ-Tax had withheld large portions of those records by applying “NR” or “Non-Responsive” labels to the redactions. Compl. ¶ 7, Exs. 2–3. Case 1:16-cv-02226-RBW Document 13-1 Filed 02/08/17 Page 1 of 4 2 3. DOJ-Tax acknowledged receipt of the July 15, 2016 FOIA request by letter, dated August 9, 2016. Compl. ¶ 11, Ex. 5. The agency assigned the request tracking number 11018 and proposed a conference call to clarify the scope of request. Compl. ¶ 11, Ex. 5. 4. On August 15, 2016, CoA Institute and DOJ-Tax held a phone conference to clarify the scope of the July 15, 2016 FOIA request. Compl. ¶ 12, Ex. 6. CoA Institute memorialized the contents of that call in an email, receipt of which was confirmed by DOJ-Tax. Compl. ¶ 13. The parties agreed that CoA Institute only sought “(1) an email chain on or about May 22, 2014 between, among others, Norah Bringer and Gretchen Wolfinger, and (2) a November 2011 report entitled Current Practices for Attorney Assignments, Transfers, and Details.” Compl. ¶ 12, Ex. 6. 5. In the course of the August 15, 2016 conference call, CoA Institute explained its position that DOJ-Tax had improperly withheld portions of the previously-released records as “non-responsive.” Compl. ¶ 12, Ex. 6. In support of its position and at DOJ-Tax’s request, CoA Institute provided the agency with a copy of the opinion of the United States Court of Appeals for the District of Columbia Circuit in American Immigration Lawyers Association v. Executive Office for Immigration Review, 830 F.3d 667 (D.C. Cir. 2016). Compl. ¶ 12, Ex. 6. 6. By letter, dated September 20, 2016, DOJ-Tax issued its final determination on the July 15, 2016 FOIA request. Compl. ¶ 14, Ex. 7. The agency’s final determination letter indicated that it had “determined that two records are responsive to [CoA Institute’s] clarified request[.]” Compl. ¶ 14, Ex. 7. 7. The first of these two records, which was responsive to Item Two of the July 15, 2016 FOIA request, was released in full. Compl. ¶ 14, Ex. 7; Compl. ¶ 16. CoA Institute did not Case 1:16-cv-02226-RBW Document 13-1 Filed 02/08/17 Page 2 of 4 3 challenge DOJ-Tax’s processing of this record at the administrative stage, and that record is not part of the instant litigation. See Compl. ¶ 18, Ex. 8 at 7. 8. The final determination letter from DOJ-Tax stated that the second record, which was responsive to Item One of the July 15, 2016 FOIA request, was withheld in full under Exemption 3, in conjunction with 26 U.S.C. § 6103, and Exemption 5, in conjunction with the attorney-work produce privilege. Compl. ¶ 15. The pages actually produced, however, contradict the description provided by DOJ-Tax in its determination letter. Compl. ¶ 17. Instead of producing one record, DOJ-Tax subdivided the email chain into nine separate records. Compl. ¶ 17; see also Compl. ¶ 14, Ex. 7 at 7–12. “Record 7” was redacted on the basis of Exemptions 3 and 5, but the other eight “records” were redacted as “non-responsive.” Compl. ¶ 17; see also Compl. ¶ 14, Ex. 7 at 7–12. 9. CoA Institute filed a timely appeal with the DOJ Office of Information Policy (“DOJ-OIP”) by letter, dated September 27, 2016. Compl. ¶ 18. The appeal objected to the subdivision of the email chain into nine separate records and the agency’s use of “non- responsive” to withhold portions of the email chain that were responsive to Item One of the July 15, 2016 FOIA request. Compl. ¶ 18, Ex. 8; Compl. ¶¶ 19–20. 10. DOJ-OIP acknowledge receipt of the CoA Institute appeal by letter, dated September 29, 2016, and assigned it appeal number DOJ-AP-2016-5667. Compl. ¶ 21, Ex. 9. DOJ-OIP, however, never made a determination on the CoA Institute appeal. Compl. ¶ 22. 11. Subsequent to the filing of this lawsuit, DOJ-Tax re-processed the email chain responsive to Item One of the July 15, 2016 FOIA request and re-produced it to CoA Institute though counsel on January 18, 2017. Valvo Decl. ¶ 7, Ex. 1; Valvo Decl. ¶ 8, Ex. 2. DOJ-Tax treated the email chain as a single record, but redacted significant portions of responsive material Case 1:16-cv-02226-RBW Document 13-1 Filed 02/08/17 Page 3 of 4 4 on the basis of Exemption 3, in conjunction with 26 U.S.C. § 6103; Exemption 5, in conjunction with the attorney-work product and deliberative process privileges; Exemption 6; and Exemptions 7(A) and 7(C). Valvo Decl. ¶ 9. 12. Shortly before opposing counsel contacted CoA Institute to deliver this re- processed email chain, DOJ-OIP released new guidance on defining a “record” under FOIA. Valvo Decl. ¶ 10, Ex. 3; Valvo Decl. ¶ 11, Ex. 4. The guidance appears to have been prompted by the American Immigration Lawyers Association decision. Valvo Decl. ¶ 11. 13. In addition to the FOIA request at issue in this case, CoA Institute has at least twenty-one (21) other requests pending with Defendant DOJ. Valvo Decl. ¶ 12. Some of those requests are the subject of pending litigation and implicate DOJ’s misuse of “non-responsive” and its definition of a “record” under the FOIA. Valvo Decl. ¶ 5. 14. CoA Institute expects that records responsive to its pending FOIA requests will include emails and email chains that could be treated similarly to the email chain at issue in this case. Valvo Decl. ¶ 14. Dated: February 8, 2017 Respectfully submitted, /s/ R. James Valvo, III R. James Valvo, III D.C. Bar No. 1017390 Lee A. Steven D.C. Bar. No. 468543 CAUSE OF ACTION INSTITUTE 1875 Eye Street, N.W., Ste. 800 Washington, D.C. 20006 Phone: (202) 499-4232 Facsimile: (202) 330-5842 james.valvo@causeofaction.org lee.steven@causeofaction.org Counsel for Plaintiff Case 1:16-cv-02226-RBW Document 13-1 Filed 02/08/17 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CAUSE OF ACTION INSTITUTE, ) ) Plaintiff, ) ) v. ) No. 1:16-cv-2226-RBW ) UNITED STATES DEPARTMENT OF JUSTICE ) ) Defendant. ) ________________________________________________) PLAINTIFF’S RESPONSE TO DEFENDANT DEPARTMENT OF JUSTICE’S STATEMENT OF UNDISPUTED MATERIAL FACTS Pursuant to Local Rule 7(h)(1), Plaintiff Cause of Action Institute (“CoA Institute”) responds, by and through undersigned counsel, to Defendant Department of Justice’s (“DOJ”) Statement of Undisputed Material Facts. ECF No. 12-2. Defendant’s numbered statements are reproduced below and each statement is followed by CoA Institute’s response. 1. On July 15, 2016, the Tax Division received a FOIA request submitted by James Valvo on behalf of Cause of Action Institute (“COA”) dated the same day. Compl. ¶ 6; Banerjee Decl. ¶ 10. Plaintiff’s Response: Undisputed. 2. On August 9, 2016, Carmen Banerjee of the Department of Justice Tax Division (“DOJ-Tax”) requested to Mr. Valvo of COA that he and Ms. Banerjee have a conference call because the Tax Division needed clarification of COA’s request. Compl. ¶ 11; Id. ¶ at 10. She asked that Mr. Valvo memorialize the call after it occurred. Id. Mr. Valvo and Ms. Banerjee had a phone conference on August 15, 2016 to clarify the scope of COA’s request dated July 15, 2016. Id. Plaintiff’s Response: Undisputed. Case 1:16-cv-02226-RBW Document 13-2 Filed 02/08/17 Page 1 of 11 2 3. Moments before the call on August 15, 2016, Mr. Valvo emailed Ms. Banerjee copies of what he described as: (1) “an email chain on or about May 22, 2014 between, among others, Norah Bringer and Gretchen Wolfinger” (the “May 2014 Emails”) and (2) “a November 2011 report entitled Current Practices for Attorney Assignments, Transfers, and Details” (“November 2011 Report”), which the Tax Division had released to COA in response to a FOIA request that is subject of Cause of Action Institute v. Dep’t of Justice and Internal Revenue Service, No. 1:15-0770 (D.D.C.), another FOIA suit against DOJ-Tax. Banerjee Decl. ¶ 12. Plaintiff’s Response: Undisputed, but Plaintiff respectfully refers the Court to the referenced email for a complete and accurate statement of its contents. Compl. ¶ 12, Ex. 6. 4. During the call, and in Mr. Valvo’s email of August 15, 2016 soon after the call memorializing it, COA clarified and agreed that its July 15, 2016 FOIA request sought only the May 2014 Emails and the November 2011 report. Id. ¶ 13. Plaintiff’s Response: Undisputed, but Plaintiff respectfully refers the Court to the referenced email for a complete and accurate statement of its contents. Compl. ¶ 12, Ex. 6. 5. COA also agreed in its August 15, 2016 email that DOJ-Tax need not conduct any search to locate the May 2014 Emails and the November 2011 report. Id. ¶ 14. Plaintiff’s Response: Disputed. Plaintiff indicated that it “d[id] not envision” that Defendant would need to conduct any additional searches. Plaintiff respectfully refers the Court to the relevant email for a complete and accurate statement of its contents. Compl. ¶ 12, Ex. 6. 6. As clarified on August 15, 2016, COA’s FOIA request sought two documents that DOJ-Tax had released in part in response to a different prior FOIA request that COA had submitted. Id. ¶ 15. The DOJ-Tax released the records in part during the pendency of Cause of Action Institute v. Dep’t of Justice and Internal Revenue Service, No. 1:15-0770 (D.D.C.). Id. Case 1:16-cv-02226-RBW Document 13-2 Filed 02/08/17 Page 2 of 11 3 Plaintiff’s Response: Undisputed. 7. On September 20, 2016, Ms. Banerjee issued DOJ-Tax’s final determination to COA in response to COA’s July 15, 2016 FOIA request as clarified. Id. ¶ 16. As part of its response, the Tax Division released in full (i.e., without any redactions) the November 2011 report and a heavily redacted version of the May 2014 Emails. Id. Plaintiff’s Response: Undisputed, but Plaintiff respectfully refers the Court to the referenced determination letter for a complete and accurate description of Defendant’s response, as well as the records at issue. Compl. Ex. 7. 8. The May 2014 Emails, which COA also asked for in its clarified request of July 15, 2016, consists of eight emails totaling six pages. Id. ¶ 17. The earliest email in the chain consists of a tip about a taxpayer previously investigated by the IRS and then referred to DOJ- Tax for a civil suit; the tip’s source provided unsolicited information to a DOJ-Tax attorney. Id. At the time of the email, and currently, the taxpayer subject of the email chain is the subject of a civil case being handled by the Tax Division. Id. The subsequent seven emails consist of internal discussions among DOJ attorneys regarding the effects of the tip on a still ongoing litigation involving that taxpayer, and about possible litigation strategy. Id. Plaintiff’s Response: CoA Institute objects to the first sentence. The record at issue is one email from Ms. Wolfinger to Ms. Bringer dated May 22, 2014 at 4:17 PM. That email quotes several earlier emails and incorporates them into the one record at issue here. See Compl. Ex. 8 at 4. CoA Institute does not dispute the remainder of the paragraph, except to the extent that it refers to portions of the record being separate emails or records. Case 1:16-cv-02226-RBW Document 13-2 Filed 02/08/17 Page 3 of 11 4 9. After this FOIA action commenced, Ms. Banerjee re-processed the May 2014 Emails. As she did at the administrative level, she conducted a segregability analysis of the May 2014 Emails. Id. ¶¶ 18, 21. Plaintiff’s Response: CoA Institute disputes that Ms. Banerjee conducted a proper segregability analyses at the administrative level. 10. On January 18, 2017, Ms. Banerjee provided to one of the DOJ-Tax attorneys representing DOJ-Tax in this suit, a re-redacted version of the May 2014 Emails, and asked that he release it to COA; he released it to COA on January 18, 2017. Id. ¶ 19. This version releases all portions that were disclosed to COA in the DOJ’s release of the May 2014 Emails in response to a separate COA FOIA request to DOJ-Tax (see supra), and additional portions. Id. Plaintiff’s Response: Undisputed. 11. Ms. Banerjee reviewed all of the pages of the May 2014 Emails and determined that DOJ-Tax has made every reasonably-segregable release of non-exempt portions of the May 2014 Emails available to the plaintiff. Id. ¶ 21. As a result, Ms. Banerjee concluded that the DOJ has withheld only those portions of the May 2014 Emails that fall within a FOIA exemption, or those portions of the May 2014 Emails that are so inextricably intertwined with exempt material as to be non-segregable. Id. Plaintiff’s Response: Undisputed. FOIA Exemption 7(A) (Possible Interference With Law Enforcement Proceedings) 12. The DOJ is withholding all the emails in the May 2014 Emails under FOIA Exemption 7, which exempts from disclosure records “compiled for law enforcement purposes.” Id. ¶ 23. Case 1:16-cv-02226-RBW Document 13-2 Filed 02/08/17 Page 4 of 11 5 Plaintiff’s Response: Undisputed, except to the extent DOJ is characterizing “all the emails” as separate emails or records. See Plaintiff’s Response to ¶ 8. 13. The withheld emails were compiled for a law enforcement purpose, specifically for a civil tax litigation that is currently ongoing. Id. ¶ 24. Plaintiff’s Response: Undisputed. 14. DOJ-Tax handles criminal and civil enforcement matters. Id. ¶ 25. The emails discuss a tip from a source regarding the alleged tax non-compliance of a third party taxpayer that is a party to civil case the Tax Division is handling. Id. They were thus compiled for a law enforcement purpose. Id. Plaintiff’s Response: Undisputed. 15. Disclosure of the emails would interfere with enforcement proceedings, specifically the ongoing civil tax case. Id. ¶ 27. Disclosing an unsolicited tip, or the DOJ attorneys’ discussion of it, or their litigation strategy, would hinder ongoing enforcement proceedings. Id. Disclosing the source and the information provided by the source could allow the taxpayer subject of the underlying civil suit to take actions to circumvent the law. Id. Thus, disclosing the source and the information could hinder the current DOJ-Tax attorneys handling the civil tax case in acting or omitting to act upon the information. Id. Plaintiff’s Response: Undisputed. 16. Disclosing sources and the information they provide could jeopardize the DOJ- Tax’s ability to receive information from this same source in any future investigation about the same taxpayer or any taxpayer associated with the same taxpayer. Id. ¶ 28. Plaintiff’s Response: Undisputed. Case 1:16-cv-02226-RBW Document 13-2 Filed 02/08/17 Page 5 of 11 6 17. Such disclosure could also hinder future civil court proceedings with other parties by chilling disclosures by sources and discussion by DOJ-Tax attorneys. Id. ¶ 29. Similarly, sources and their revelations must be protected. Id. The emails at issue here are particularly noteworthy because they took place in the context of then ongoing, and still pending, litigation involving the subject of the source’s tip. Id. Plaintiff’s Response: Undisputed. FOIA Exemption 5 (Attorney Work Product Doctrine Privilege) 18. The Tax Division is withholding the eight emails in question based on 5 U.S.C. § 552(b)(5) (“FOIA Exemption 5”). Id. ¶ 30. Exemption 5 incorporates privileges which the government enjoys in pretrial discovery, including the attorney work product privilege. Id. Plaintiff’s Response: Undisputed, except to the extent DOJ is characterizing “the eight emails in question” as separate emails or records. See Plaintiff’s Response to ¶ 8. 19. The May 2014 Emails were prepared by DOJ attorneys involved in active litigation with the subject of the confidential tip. Id. ¶ 31. The emails discuss the actual and possible ramifications of the tip and other strategy discussion as to the then and still ongoing litigation. Id. Plaintiff’s Response: Undisputed. 20. Thus, the May 2014 Emails are exempt under § 552(b)(5) and the work product privilege. Id. Plaintiff’s Response: Plaintiff objects to this paragraph as a legal conclusion rather than a statement of material fact. Accordingly, no response is required. Case 1:16-cv-02226-RBW Document 13-2 Filed 02/08/17 Page 6 of 11 7 FOIA Exemption 5 (Deliberative Process Privilege) 21. The DOJ is also withholding portions of some of the email strings in the May 2014 Emails under FOIA Exemption 5 in conjunction with the deliberative process privilege. Id. ¶ 33. Plaintiff’s Response: Undisputed, except to the extent DOJ is characterizing “some of the emails strings” as separate emails or records. See Plaintiff’s Response to ¶ 8. 22. Portions of some of the email strings are pre-decisional because they were created prior to the DOJ deciding how to proceed with its then-ongoing civil litigation involving the subject of the unsolicited tip. Id. ¶ 34. The portions of the email strings withheld pursuant to the deliberative process privilege are deliberative because they contain a DOJ attorney’s thoughts as to whether the unsolicited information would be used in the underlying ongoing tax litigation. Id. Plaintiff’s Response: Undisputed, except to the extent DOJ is characterizing “some of the emails strings” as separate emails or records. See Plaintiff’s Response to ¶ 8. 23. DOJ-Tax is withholding all the substantive underlying content under the attorney work product privilege. Id. ¶ 35. Plaintiff’s Response: Undisputed. 24. DOJ-Tax is asserting the deliberative process privilege only as to some email strings or portions of email strings. Id. Ms. Banerjee made every effort to segregate non-exempt information (Id. at ¶¶ 18, 21, 35), and release unharmful material. Plaintiff’s Response: Undisputed, except to the extent DOJ is characterizing “some of the emails strings or portions of the email strings” as separate emails or records. See Plaintiff’s Response to ¶ 8. Case 1:16-cv-02226-RBW Document 13-2 Filed 02/08/17 Page 7 of 11 8 25. The withheld emails are properly withheld under FOIA Exemption 5. Id. Plaintiff’s Response: Plaintiff objects to this paragraph as a legal conclusion rather than a statement of material fact. Accordingly, no response is required. FOIA Exemption 3 with 26 USC § 6103 (identity of a taxpayer). 26. The Tax Division is withholding the first seven of the eight emails in question, and portions of the eight email, based on 5 U.S.C. § 552(b)(3) (“FOIA Exemption 3”), specifically with section 6103 of the Internal Revenue Code. Id. ¶ 36. Exemption 3 exempts from disclosure information prohibited from disclosure by another non-FOIA statute. Id. Plaintiff’s Response: Undisputed, except to the extent DOJ is characterizing “the eight emails in question” as separate emails or records. See Plaintiff’s Response to ¶ 8. 27. The May 2014 Emails commence with the email earliest in time from a source to a Tax Division attorney, and the subsequent seven emails consist of an internal discussion among two DOJ-Tax attorneys regarding the possible effects of the tip on the then pending litigation, which is still ongoing, involving the subject of the tip. Id. ¶ 37. Plaintiff’s Response: Undisputed, except to the extent DOJ is characterizing “the subsequent seven emails” as separate emails or records. See Plaintiff’s Response to ¶ 8. 28. The information contained in the withheld emails would identify the taxpayer who is the subject of an enforcement case being handled by DOJ-Tax. Id. ¶ 38. Specifically, the subject line of all emails reveals the name of the taxpayer. Id. The content of the emails by themselves or in the aggregate would expressly or implicitly identify the taxpayer. Id. The May 2014 Emails discuss the nature and source of the taxpayer’s tax liability, and contain information that would reveal that the taxpayer is subject of a case involving its actual federal tax liability. Id. Case 1:16-cv-02226-RBW Document 13-2 Filed 02/08/17 Page 8 of 11 9 Plaintiff’s Response: Undisputed. 29. The information reveals the identity of another taxpayer that is associated with the subject taxpayer, thus indirectly revealing the subject taxpayer. Id. ¶ 39. The content of the information in the earliest email and the subsequent emails reveals the identity of a third party taxpayer; thus, disclosing this information would violate section 6103(a). Id. Plaintiff’s Response: Plaintiff does not dispute the first sentence insofar as Defendant has provided a description of the content of the email at issue. Plaintiff does not dispute the first portion of the second sentence, except to the extent DOJ is characterizing “the earliest email and the subsequent emails” as separate emails or records. See Plaintiff’s Response to ¶ 8. Plaintiff objects to the portion of the second sentence after the semicolon as a legal conclusion rather than a statement of material fact. Accordingly, no response is required. 30. The first seven emails are fully exempt from disclosure pursuant to FOIA Exemption 3. Id. ¶ 40. Plaintiff’s Response: Plaintiff objects to this paragraph’s characterization of “the first seven emails” as separate emails or records. See Plaintiff’s Response to ¶ 8. Plaintiff also objects as the paragraph contains a legal conclusion rather than a statement of material fact. Accordingly, no response to that portion of the paragraph is required. 31. The eight and most recent email string is partially withheld under Exemption 3 with section 6103(a) because disclosing the text of the subject of the email would identify the taxpayer; and therefore, it is exempt under Exemption 3. Id. ¶ 41. The eighth email identifies the party in a tax case in litigation; therefore, it is partially withheld under Exemption 3 with 6103. Id. Moreover, as discussed above; this eighth email is fully withheld under Exemption 5 and the attorney work produce doctrine/privilege. Id. Case 1:16-cv-02226-RBW Document 13-2 Filed 02/08/17 Page 9 of 11 10 Plaintiff’s Response: Undisputed, insofar as Defendant has stated its application of certain FOIA exemptions, and its justifications for doing so. Plaintiff objects to those portions of the paragraph that claim records have been properly withheld as exempt. Those are legal conclusions rather than statements of material fact. Plaintiff is not required to respond to those portions of the paragraph. Plaintiff objects to this paragraph’s characterization of “the eight email” as a separate email or record. See Plaintiff’s Response to ¶ 8. FOIA Exemptions 6 and 7(C) 32. The entirety of the earliest initial email, which is the email from the source, and portions of the emails following the earliest (except for the most recent email) are exempt under Exemption 6. Id. ¶ 42. First, the withheld portions identify the individual source providing the unsolicited information to the DOJ-Tax. Id. Second, these same emails name several other individuals, and reveal their personal information. Id. Disclosing the personal private information would be an unwarranted invasion of the personal privacy of all individuals identified; none of the personal private information serves a public interest purpose. Id. Plaintiff’s Response: Undisputed, insofar as Defendant has stated its application of certain FOIA exemptions, and its justifications for doing so. Plaintiff objects to those portions of the paragraph that claim records have been properly withheld as exempt. Those are legal conclusions rather than statements of material fact. Plaintiff is not required to respond to those portions of the paragraph. Plaintiff also objects to this paragraph’s characterization of “the earliest initial email” as a separate email or record. See Plaintiff’s Response to ¶ 8. 33. The entirety of the earliest initial email, which is the email from the source, and portions of the emails following the earliest (except for the most recent email) are exempt from disclosure under Exemption 7(C) to withhold the same information as above because disclosing Case 1:16-cv-02226-RBW Document 13-2 Filed 02/08/17 Page 10 of 11 11 such information could reasonably be expected to invade the privacy of all the individuals identified; none of the personal private information serves a public interest purpose. Id. at ¶ 43. Plaintiff’s Response: Undisputed, insofar as Defendant has stated its application of Exemption 7(C), and its justifications for doing so. Plaintiff objects to those portions of the paragraph that claim records have been properly withheld as exempt. Those are legal conclusions rather than statements of material fact. Plaintiff is not required to respond to those portions of the paragraph. Plaintiff also objects to this paragraph’s characterization of “the earliest initial email” as a separate email or record. See Plaintiff’s Response to ¶ 8. 34. Ms. Banerjee determined that releasing the private information could and would invade the privacy of individuals and that there is no actual public interest in releasing any of the information withheld under exemptions 6 and 7(C). Id. at ¶ 44. Plaintiff’s Response: Undisputed. Dated: February 8, 2017 Respectfully submitted, /s/ R. James Valvo, III R. James Valvo, III D.C. Bar No. 1017390 Lee A. Steven D.C. Bar. No. 468543 CAUSE OF ACTION INSTITUTE 1875 Eye Street, N.W., Ste. 800 Washington, D.C. 20006 Phone: (202) 499-4232 Facsimile: (202) 330-5842 james.valvo@causeofaction.org lee.steven@causeofaction.org Counsel for Plaintiff Case 1:16-cv-02226-RBW Document 13-2 Filed 02/08/17 Page 11 of 11 Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 1 of 21 Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 2 of 21 Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 3 of 21 Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 4 of 21 INDEX OF EXHIBITS TO DECLARATION OF R. JAMES VALVO, III Exhibit 1: Dep’t of Justice Januarary 18, 2017 Re-Production of Bringer-Wolfringer Email Chain Exhibit 2: Email from Nelson Wagner, Dep’t of Justice, to James Valvo, Cause of Action Inst., et al. (Jan. 18, 2018) Exhibit 3: Press Release, Office of Info. Policy, Dep’t of Justice, OIP Issues New Guidance on the Defnition of a Record and the Processing of Records Responsive to a Request (Jan. 11, 2017) Exhibit 4: Office of Info. Policy, Dep’t of Justice, Guidance: Defining a “Record” Under the FOIA (updated Jan. 12, 2017) Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 5 of 21 EXHIBIT 1 Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 6 of 21 Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 7 of 21 Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 8 of 21 Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 9 of 21 Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 10 of 21 Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 11 of 21 Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 12 of 21 EXHIBIT 2 Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 13 of 21 1 James Valvo From: Wagner, Nelson (TAX) Sent: Wednesday, January 18, 2017 6:20 PM To: James Valvo Cc: Lee Steven; Banerjee, Carmen M. (TAX); Hagerman, Richard J. (TAX) Subject: May 2014 email chain Attachments: COA -- Redacted Email Chain 1.18.2017.PDF James, Attached please find a re‐redacted version of the May 2014 email chain, which the Tax Division is releasing to Cause of Action. Later today, I will be filing the Department of Justice’s Motion for Summary Judgment. Please feel free to contact me with any questions. Regards, Nelson Nelson Wagner Trial Attorney Department of Justice, Tax Division Civil Trial Section, Eastern Region P.O. Box 227 Washington, DC 20044 Office: (202) 616-3369 Fax: (202) 514-6866 Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 14 of 21 EXHIBIT 3 Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 15 of 21 OIP ISSUES NEW GUIDANCE ON THE DEFINITION OF A RECORD AND THE PROCESSING OF RECORDS RESPONSIVE TO A REQUEST January 11, 2017 One of the first questions that an agency must answer as it begins to process a FOIA request is: “What exactly is the requester seeking?” The answer to that question will determine the scope of the agency’s search for responsive records and that in turn will create the universe of records that needs to be processed for release. Sometimes a requester seeks information on a particular topic and in the course of conducting their search for records on that topic, the agency may locate documents that discuss a number of different subjects, only some of which relate to the topic of the FOIA request. If only a portion of a document concerned the topic of a request, a common practice has been for an agency to process only the responsive portion and redact the other portions as “nonresponsive” or “outside the scope” of the request. Given that the processing of FOIA requests can be very laborintensive and timeconsuming, it is in both the requesters’ interests and the agencies’ that time and resources not be expended unnecessarily by reviewing material that was not requested. While many district courts had approved the practice of agencies redacting “nonresponsive” material from records processed for release under the FOIA, in July 2016, the issue was addressed by the Court of Appeals for the District of Columbia Circuit in American Immigration Lawyers Association v. EOIR, 830 F.3d 667 (D.C. Cir. 2016). OIP’s guidance summarizes the Court of Appeals for the District of Columbia’s holding that the FOIA “does not provide for . . . redacting nonexempt information within responsive records.” As declared by the court, “once an agency identifies a record it deems responsive to a FOIA request, the statute compels disclosure of the responsive record—i.e., as a unit—except insofar as the agency may redact information falling within a statutory exemption.” As a result of the ruling in AILA, it will be important for agencies to carefully define what they consider to be the “records” responsive to any given FOIA request. In addition to some practical considerations, OIP’s guidance provides principles for agencies to follow when determining what constitutes a “record” responsive to a FOIA request. The full text of the guidance, along with all other guidance issued by OIP, is available on our guidance page. If you have any questions regarding this new guidance, please contact OIP’s FOIA Counselor Service at (202) 514FOIA (3642). Topic(s): FOIA Posted in: Office of Information Policy RELATED BLOG POSTS FOIA Post (2009): Summaries of New Decisions September 2009 November 3, 2009 Summaries of New Decisions September 2009 As announced previously by OIP, we are now posting uptodate summaries of new court decisions. To facilitate their review, the cases are broken down by FOIA Exemption or procedural element and internal citations and quotations have been omitted. OIP provides these case summaries as a public service; due to their nature as summaries, they are not intended to be authoritative or complete statements of the facts or holdings of any of the cases... FOIA Post (2009): Summaries of New Decisions August 2009 January 20, 2010 Summaries of New Decisions December 2009 As announced previously by OIP, we are now posting uptodate summaries of new court decisions. To facilitate their review, the cases are broken down by FOIA Exemption or Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 16 of 21 Updated January 12, 2017 procedural element and internal citations and quotations have been omitted. OIP provides these case summaries as a public service; due to their nature as summaries, they are not intended to be authoritative or complete statements of the facts or holdings of any of the cases... FOIA Post (2010): Summaries of New Decisions August 2010 October 12, 2010 Summaries of New Decisions August 2010 As announced previously by OIP, we are now posting uptodate summaries of new court decisions. To facilitate their review, the cases are broken down by FOIA Exemption or procedural element and internal citations and quotations have been omitted. OIP provides these case summaries as a public service; due to their nature as summaries, they are not intended to be authoritative or complete statements of the facts or holdings of any of the cases summarized... FOIA Post (2010): Summaries of New Decisions October 2010 November 18, 2010 Summaries of New Decisions October 2010 As announced previously by OIP, we are now posting uptodate summaries of new court decisions. To facilitate their review, the cases are broken down by FOIA Exemption or procedural element and internal citations and quotations have been omitted. OIP provides these case summaries as a public service; due to their nature as summaries, they are not intended to be authoritative or complete statements of the facts or holdings of any of the cases summarized... More blog posts Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 17 of 21 EXHIBIT 4 Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 18 of 21 OIP GUIDANCE Defining a “Record” Under the FOIA Introduction One of the first questions that an agency must answer as it begins to process a Freedom of Information Act request is: “What exactly is the requester seeking?” The answer to that question will determine the scope of the agency’s search for responsive records and that in turn will create the universe of records that needs to be processed for release. In some instances, this is a straightforward process. For example, the requester might seek a specific report. The agency will search for the requested report and when it locates it, the entirety of the report will be the “record” that is processed. Similarly, the requester might seek all documents authored by a particular person during a certain time frame. The agency will search for such documents and when it locates them, they will all constitute the “records” that need to be processed in response to the request. There are other times, however, where requesters seek information on a particular topic. In the course of conducting their search for records on that topic, agencies may locate documents that discuss a number of different subjects, only some of which relate to the topic of the FOIA request. If only a portion of a document concerned the topic of a request, a common practice has been for an agency to process only the responsive portion and redact the other portions as “nonresponsive” or “outside the scope” of the request. Given that the processing of FOIA requests can be very laborintensive and timeconsuming, it is in both the requesters’ interests and the agencies’ that time and resources not be expended unnecessarily by reviewing material that was not requested. The practice of not routinely processing portions of a document that are not responsive to a request, but just happen to be physically adjacent to responsive portions, promotes efficiency. By focusing their time and efforts on processing only those portions of records that are responsive to the request, the agency can often respond to the request in a timelier manner while potentially assessing fewer fees to the requester. While many district courts had approved the practice of agencies redacting “nonresponsive” material from records processed for release under the FOIA, the propriety of doing so was not addressed by the Court of Appeals for the District of Columbia Circuit until July 2016, when it decided American Immigration Lawyers Association v. EOIR, 830 F.3d 667 (D.C. Cir. 2016). The American Immigrant Lawyers Association Decision In American Immigration Lawyers Association v. EOIR, the plaintiff submitted a request to the agency for records regarding complaints made against immigration judges. AILA, 830 F.3d at 669. The agency processed thousands of pages of complaint files, but made redactions of information that the agency deemed to be nonresponsive to the FOIA request. Id. at 672. Responding to a challenge to this practice, the D.C. Circuit ruled that the FOIA “sets forth the broad outlines of a process for agencies to follow when responding to FOIA requests: first, identify responsive records; second, identify those responsive records or portions of responsive records that are statutorily exempt from disclosure; and third, if necessary and feasible, redact exempt information from the responsive records.” Id. at 677. Significantly, the court ruled that “[t]he statute does not provide for . . . redacting nonexempt information within responsive records.” Id. Relying on the Supreme Court’s ruling in Milner v. Department of the Navy that the FOIA’s exemptions are “‘exclusive’ and must be ‘narrowly construed,’” 562 U.S. 562, 565 (2011) (quoting EPA v. Mink, 410 U.S. 73, 79 (1973) & FBI v. Abramson, 456 U.S. 615, 630 (1982)), the D.C. Circuit ruled that “nonresponsive redactions . . . find no home in FOIA’s scheme.” AILA, 830 F.3d at 677. “Rather,” the court declared, “once an agency identifies a record it deems responsive to a FOIA request, the statute compels disclosure of the responsive record—i.e., as a unit—except insofar as the agency may redact information falling within a statutory exemption.” Id. In arriving at this conclusion the court did not attempt to answer the important antecedent question of what a “record” is under the FOIA. Id. at 678. Indeed, it noted that the “practical significance of FOIA’s command to disclose a responsive record as a unit (after deletion of exempt information) depends on how one conceives of a ‘record.’” Id. In Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 19 of 21 the case before it, the parties had not addressed this antecedent question and so the court simply took “as a given” the agency’s own understanding of what constitutes a “record.” Id. The court then held that “once an agency itself identifies a particular document or collection of material –such as a chain of emails—as a responsive ‘record,’ the only information the agency may redact from that record is that falling within one of the statutory exemptions.” Id. at 678 79. The court explained that the FOIA itself contains no definition of the term “record,” and that “agencies . . . in effect define a ‘record’ when they undertake the process of identifying records that are responsive to a request.” Id. at 678. The court also pointed out that there were a “range of possible ways in which an agency might conceive of a ‘record’” and noted that the Department of Justice had issued guidance on the topic of processing documents that concern multiple, unrelated topics that agencies could use “when determining whether it is appropriate to divide such a document into discrete ‘records.’” Id. Key Considerations Identified in the D.C. Circuit’s Decision As a result of the D.C. Circuit’s ruling in AILA, it will be important for agencies to carefully define what they consider to be the “records” responsive to any given FOIA request. Once they determine that something is a “record” they must process it in its entirety for exemption applicability. Only those portions of the record that are exempt can be redacted. After the court’s decision in AILA it is not permissible to redact information within a record as “nonresponsive.” In light of this, agencies will want to ensure that they are carefully defining what is a “record” responsive to a request so that they are not unnecessarily processing material that is not what the requester sought. While the D.C. Circuit did not itself define the term "record" for purposes of the FOIA, some helpful principles emerge from the court's opinion that can guide agencies in making their determinations. First, the court recognized that there are a range of ways to define what is a “record,” and that it is the very process of searching for what has been requested by each requester that forms the basis for the determination. Second, while the court drew attention to a number of different disclosure statutes, the “record” definition from the Privacy Act is particularly relevant, given that the Privacy Act is the sister statute to the FOIA, often working in tandem with it. The Privacy Act defines a “record” as “any item, collection, or grouping of information.” 5 U.S.C. § 552a(a)(4). Applying this definition of "record" to the FOIA, a record would be any item, collection, or grouping of information that pertains to the subject of a specific FOIA request. This can be a useful construct for FOIA professionals to apply. Guidance on Defining a “Record” Based upon these important considerations, in the absence of a legal definition of “record” for FOIA purposes, we urge agencies to apply the following principles in determining what constitutes a "record" responsive to a FOIA request. Be Guided by the Privacy Act’s Definition of “Record” Agencies can use the definition of record found in the Privacy Act to guide their decisions as to what is a record for purposes of the FOIA. Thus, each “item, collection, or grouping of information” on the topic of the request can be considered a distinct “record.” This approach allows for a more finetuned, contentbased approach to the decision, which applies irrespective of the physical attributes of a document. Thus, a “record” can potentially constitute an entire document, a single page of a multipage document, or an individual paragraph of a document. Moreover, based on the subject of a particular FOIA request, an entire string of emails, a single email within a string of emails, or a paragraph within a single email could potentially constitute a "record" for purposes of the FOIA. Link Records to Subject of Request The nature of a FOIA "record" is defined by both the content of a document and the subject of the request. For example, if a document consists of a list of summaries of complaints against immigration judges organized by the name of each judge, and the subject of the FOIA request is "complaints against all immigration judges" then the entire document is the "record" for purposes of that FOIA request because the entire document is a “collection or grouping of information” on the subject of the request. Conversely, if the FOIA request specifically concerns "complaints against Judge Smith," then only the complaint summaries concerning Judge Smith would Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 20 of 21 Updated January 12, 2017 constitute the "record" for purposes of that FOIA request, as only those portions would be the “collection or grouping of information” on Judge Smith. These distinctions are most easily made when the document can reasonably be broken into discrete units. In the example above, the document was organized by the name of each judge and so readily lent itself to division according to that criterion. In reviewing multisubject documents to determine whether they can be viewed as a series of distinct “records,” agencies should ensure that the document can readily be divided into distinct “items or groupings” of information on different topics so that it is reasonable to view it as a collection of “records.” For example, if there are topical headings setting items apart, or bulleted lists describing discrete topics, those are helpful indicators to use in dividing the document into discrete “records.” Once that is done, only the discrete “records” that are subject to the request need to be processed. A paragraph within an email or document could potentially constitute a distinct record, but only if the subject of the request is sufficiently specific to pertain only to that paragraph and the subject of the paragraph is sufficiently distinct from the surrounding paragraphs to constitute a distinct record. By contrast, if a document cannot be viewed as containing discrete “items or groupings” of information on different topics then it must be treated as a single “record” and the entirety must be processed for exemption applicability. Logically, the smaller the document, the more difficult it will be to segregate an item of information as a distinct FOIA "record." Indeed, in the AILA case, the D.C. Circuit noted that it found “it difficult to believe that any reasonable understanding of a ‘record’ would permit withholding an individual sentence within a paragraph within an email on the ground that the sentence alone could be conceived of as a distinct, non responsive ‘record.’” AILA, 830 F.3d at 679. Practical Considerations To the extent agencies identify multisubject documents that they divide into discrete "records" for purposes of responding to a particular FOIA request, they must ensure that they take that into account anytime they refer to the volume of "records" responsive to the request. For example, when providing an estimate of the volume withheld, if an agency has divided one tenpage document into five distinct "records," three of which are responsive to the request, when referring to the number of records processed it should use the number three, not one. If the individual emails within a string of emails have been divided into separate "records," then each individual responsive email should be counted when calculating the number of "records" processed or withheld. When dealing with large volumes of material agencies may find it easier to refer to the volume using other metrics, such as the number of pages, rather than the number of "records." Similarly, when marking records for disclosure, if an agency has divided a multisubject document into distinct records, it should mark the distinct records clearly so that the requester can readily see how the agency has defined the records responsive to his or her request. To the extent the document has headings, bullets or other textual content that illustrates that the document contains multiple subjects, agencies should release those headings or indicators to the extent possible so that the requester can readily see why and how the agency divided the document into distinct "records." In sum, after the decision in AILA it is important for agencies to carefully consider what constitutes a “record” responsive to any given FOIA request. When documents contain multiple subjects, agencies can review them to determine whether they can be divided into distinct records, based on both the subject of the request and the content of the document. This guidance sets forth workable principles that agencies can apply in making such determinations. Case 1:16-cv-02226-RBW Document 13-3 Filed 02/08/17 Page 21 of 21 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) CAUSE OF ACTION INSTITUTE, ) ) Plaintiff, ) ) v. ) No. 1:16-cv-2226-RBW ) UNITED STATES DEPARTMENT OF JUSTICE, ) ) Defendant. ) __________________________________________) [PROPOSED] ORDER ON CAUSE OF ACTION INSTITUTE’S RESPONSE TO DEPARTMENT OF JUSTICE’S MOTION FOR SUMMARY JUDGEMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT Upon consideration of Defendant Department of Justice’s (“DOJ”) Motion for Summary Judgment, and Plaintiff Cause of Action Institute’s (“CoA Institute”) Response and Cross- Motion for Summary Judgment, this Court hereby: 1. GRANTS DOJ’s Motion for Summary Judgment as to the application of exemptions in the January 18, 2017 production; 2. GRANTS CoA Institute’s Cross-Motion for Summary Judgment finding DOJ’s use of “non-responsive” redactions and segmentation of one record into multiple records as improper; and 3. ORDERS the parties to meet and confer within 14 days of the date of this Order and propose a briefing schedule on issue of attorney fees and costs. IT IS SO ORDERED This __________ day of _____________, 2017. ______________________________________ United States District Judge Reggie B. Walton Case 1:16-cv-02226-RBW Document 13-4 Filed 02/08/17 Page 1 of 1