Professional Documents
Culture Documents
This action pertains to two Freedom of Information Act (FOIA) requests that Plaintiff,
Citizens for Responsibility and Ethics in Washington (CREW), submitted to Defendant, the
United States Department of Justice (DOJ). These requests sought documents from the Federal
Bureau of Prisons (BOP) and the Criminal Division, components of the DOJ, related to attempts
by documentary film makers to interview former lobbyist Jack Abramoff while he was in the
custody of the BOP, and Mr. Abramoff’s involvement with other media productions. See Am.
Because the DOJ and its components fulfilled all of their obligations under FOIA, 5
U.S.C. § 552, Defendant moved for summary judgment in its favor pursuant to Rule 56(b) of the
Federal Rules of Civil Procedure. See Def.’s Mot. for Summ. J. [dkt. no. 10]. Plaintiff
subsequently filed its opposition to Defendant’s motion and cross-moved for partial summary
judgment. See Pl.’s Mot. for Partial Summ. J. [dkt. no. 11]; Pl.’s Mem. in Opp’n [dkt. no. 12-2]
(“Pl.’s Mem.”). Plaintiff argues that the DOJ has not established that it conducted an adequate
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search for responsive records, see id. at 4-6, and that certain records and portions of records were
Summary Judgment [dkt. no. 10-2] and accompanying Declarations and Exhibits, as well as this
Memorandum and attached Declarations and Exhibits, the searches conducted by the BOP and
the Criminal Division were more than adequate to satisfy FOIA’s requirements. Plaintiff’s
as pure speculation about what the searches should have revealed. Furthermore, the BOP and the
Criminal Division – as well as the Federal Bureau of Investigation (FBI), another DOJ
component, to which a small number of documents were referred – properly invoked FOIA’s
statutory exemptions, Plaintiff’s arguments to the contrary notwithstanding. The third parties
whose information appears in the government files at issue in this case have at least some
privacy interest at stake, and there is no bona fide public interest that would justify an invasion of
their privacy. Accordingly, the Court should grant summary judgment in favor of Defendant and
BACKGROUND
This action involves two separate but similar FOIA requests made by CREW, both
seeking documents related to attempts by documentary film makers to interview former lobbyist
Jack Abramoff while he was in the custody of the BOP, and Mr. Abramoff’s involvement with
other media productions. The DOJ’s initial Memorandum in Support of its Motion for Summary
Judgment described the requests in detail, see Def.’s Mem. of Points and Authorities in Support
of Mot. for Summ. J. [dkt. no. 10-2] (“Def.’s Mem.”) at 2-4, and rather than reciting that factual
1
Plaintiff does not challenge the withholding of certain documents. See infra at 11 &
n.8.
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background again here, Defendant respectfully directs the Court’s attention to that portion of its
initial brief. Defendant’s initial Memorandum also discussed the procedural history of this case,
as well as the processing of documents by the BOP, the Criminal Division, and the FBI, at some
length. See id. at 4-6. Again, rather than rehashing that discussion here, the DOJ refers the
In its brief, Plaintiff makes several assertions of fact that are not supported by the record
in this case. Defendant will respond to those assertions as needed throughout this Memorandum,
with reference to the Declarations accompanying its initial brief, see Decl. of William
Baumgartel (“Baumgartel Decl.”) (the BOP’s initial Declaration); Decl. of Kristin L. Ellis (“Ellis
Decl.”) (the Criminal Division’s initial Declaration); Decl. of David M. Hardy (“Hardy Decl.”)
(the FBI’s initial Declaration), as well as the Supplemental Declarations attached to this brief,
see Supp. Decl. of William Baumgartel (“Baumgartel Supp. Decl.”) (the BOP’s Supplemental
Declaration); Supp. Decl. of Kristin L. Ellis (“Ellis Supp. Decl.”) (the Criminal Division’s
Supplemental Declaration).
However, Plaintiff makes one factual assertion that should be addressed up front.
Plaintiff states that after its FOIA requests were made, “both BOP and the Criminal Division
withheld all responsive records in their entirety, citing the privacy of third parties for their
withholdings. CREW filed administrative appeals of the denials. In response, the Office of
Information Policy . . . blindly affirmed the initial blanket denials by BOP and the Criminal
Division.” Pl.’s Mem. at 3. Plaintiff mischaracterizes the procedural history of this case. It is
true that the BOP conducted an initial search for documents after receiving Plaintiff’s request,
and then denied the request pursuant to FOIA Exemption 6, 5 U.S.C. § 552(b)(6), and FOIA
Exemption 7(C), id. § 552(b)(7)(C). See Baumgartel Decl. ¶¶ 7-8 & Ex. B. It is also true that
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Plaintiff appealed the BOP’s denial, and the DOJ Office of Information Policy (OIP) denied the
appeal. See id. ¶ 9 & Exs. C, D, E. But the Criminal Division did not withhold responsive
records and did not issue a blanket denial; nor did Plaintiff file an appeal of any action taken by
the Criminal Division, as there was nothing to appeal. On the contrary, before this litigation was
filed the Criminal Division informed CREW that it would conduct a search for responsive
records, and was in the process of conducting that search when this litigation commenced. See
ARGUMENT
I. The Criminal Division and the BOP Have Established that They Conducted
Adequate Searches for Responsive Documents
Plaintiff first argues that the Criminal Division and the BOP did not conduct adequate
searches in response to Plaintiff’s FOIA requests. See Pl.’s Mem. at 4-6. In support of this
argument, Plaintiff speculates that certain records that should exist were not in fact found by the
components. See id. at 5. Plaintiff also alleges that the searches conducted were narrower than
the actual requests in several respects. See id. at 5-6. Neither of these arguments is availing.
On summary judgment in a FOIA case, the agency must demonstrate that it has
conducted an adequate search – that is, “a good faith effort to conduct a search for the requested
records, using methods which can be reasonably expected to produce the information requested.”
Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “There is no requirement
that an agency search every record system.” Id. “[T]he issue to be resolved is not whether there
might exist any other documents possibly responsive to the request, but rather whether the search
for those documents was adequate.” Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485
(D.C. Cir. 1984) (emphasis in original). “A search is not unreasonable simply because it fails to
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produce all relevant material.” Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C. Cir. 1986);
The process of conducting a reasonable search is a process that requires “both systemic
and case-specific exercises of discretion and administrative judgment and expertise,” and “is
hardly an area in which the courts should attempt to micromanage the executive branch.”
Schrecker v. U.S. Dept’t of Justice, 349 F.3d 657, 662 (D.C. Cir. 2003) (“Schrecker II”) (internal
quotation marks and citation omitted). Therefore, in evaluating the adequacy of a search, courts
accord agency affidavits “a presumption of good faith, which cannot be rebutted by ‘purely
speculative claims about the existence and discoverability of other documents.’” SafeCard
Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc.
v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). The statute does not require “meticulous
documentation [of] the details of an epic search.” Perry, 684 F.2d at 127. “[A]ffidavits that
explain in reasonable detail the scope and method of the search conducted by the agency will
suffice to demonstrate compliance with the obligations imposed by the FOIA.” Id.
Much of Plaintiff’s argument regarding the adequacy of the search for documents rests on
mere speculation that certain documents should have been found, but were not. Specifically,
Plaintiff claims that director George Hickenlooper and actor Kevin Spacey visited Mr. Abramoff
in prison, and the absence of records related to these visits – except for one mention in an email
thread released by the Criminal Division 2 – establishes that the searches were inadequate. See
Pl.’s Mem. at 5.
2
Because the Criminal Division redacted third-party names from the records that it
released, Plaintiff’s statement that one of the emails relates to visits by Mr. Hickenlooper or Mr.
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However, “[m]ere speculation that as yet uncovered documents may exist does not
undermine the finding that the agency conducted a reasonable search.” SafeCard Servs., 926
F.2d at 1201; see also Schoenman v. FBI, 573 F. Supp. 2d 119, 138 (D.D.C. 2008).
The D.C. Circuit has made clear that a FOIA requester who challenges the
reasonableness of a search “because the agency did not find responsive
documents that [the requester] claims must exist” cannot sustain that challenge
when he “provides no proof that these documents exist and [offers only] his own
conviction that [an event] was of such importance that records must have been
created.” . . . “Such hypothetical assertions are insufficient to raise a material
question of fact with respect to the adequacy of the agency's search.”
Carter, Fullerton & Hayes LLC v. Fed. Trade Comm’n, 520 F. Supp. 2d 134, 140 (D.D.C. 2007)
(quoting Oglesby, 920 F.2d at 67 n.13). In deciding whether an agency has conducted an
adequate search, the question for the Court “is not ‘whether there might exist any other
documents possibly responsive to the request, but rather whether the search for those documents
was adequate.’” Id. at 141 (quoting Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.D.C.
1994)).
Plaintiff’s allegations regarding documents related to Mr. Abramoff’s meetings with Mr.
Hickenlooper and Mr. Spacey are “mere speculation.” Plaintiff simply does not explain why
such documents must exist. Although Plaintiff alleges that there were “extensive negotiations
between the filmmakers and DOJ,” the only support for this allegation is a blog entry citing an
unnamed source. See Pl.’s Mem. at 5. There is absolutely no indication of who was involved in
these alleged negotiations; and if they did in fact take place, they very well could have been oral,
resulting in no documents. Nor has Plaintiff explained why there is any reason to believe that the
Criminal Division should have found documents related to Mr. Hickenlooper and/or Mr. Spacey
Spacey is speculation, which DOJ neither confirms nor denies. Nonetheless, for purposes of this
argument DOJ assumes that Plaintiff is correct.
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Plaintiff’s argument is further undermined by the fact that, as discussed in more detail
below, the searches conducted by both the Criminal Division and the BOP were broad enough to
find documents related to Mr. Hickenlooper’s and Mr. Spacey’s visits if such documents did in
fact exist. 3
Plaintiff also argues that the searches conducted by the BOP and the Criminal Division
were narrower than the actual FOIA requests. See Pl.’s Mem. at 5-6. Specifically, Plaintiff
alleges that the searches were focused on the requests by Alex Gibney and Jigsaw Productions to
interview Mr. Abramoff, and ignored that part of the request that “sought records regarding Mr.
First, Plaintiff asserts that the BOP’s search of Mr. Abramoff’s Central File was limited
to the search terms “Alex Gibney,” “Zena Barakat”, “Jigsaw Productions,” and “Abbe Lowell.”
See id. It is true that the BOP used those search terms, which is perfectly appropriate given that
those were the specific terms provided by Plaintiff in its request. But it is inaccurate for Plaintiff
to suggest that the BOP’s search was limited to those terms. In his initial Declaration for the
BOP, Senior Paralegal Specialist William Baumgartel clearly stated that he “also searched for
visitor lists or any documents that referred to or was associated with any type of request to
interview inmate Abramoff.” Baumgartel Decl. ¶ 22; see also Baumgartel Supp. Decl. ¶¶ 3-4.
Furthermore, the search conducted by the BOP did in fact yield several documents related to
3
It should also be noted that Plaintiff’s requests did not specifically mention Mr.
Hickenlooper nor Mr. Spacey, so the components had no reason to search for those names in
particular.
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media requests to interview Mr. Abramoff that did not involve any of the parties identified by
Plaintiff in its request. 4 The irony is that Plaintiff argues that BOP’s search was limited to media
requests from Alex Gibney and Jigsaw Productions, even though Plaintiff itself later argues that
it is able to identify the names of other members of the media in the released documents. See
Second, Plaintiff takes issue with the fact that the initial Baumgartel Declaration did not
describe the search terms used by the BOP’s Legislative Affairs Office (LAO). Therefore, Mr.
Baumgartel has provided a Supplemental Declaration in which he clarifies that the LAO used the
search term “Abramoff.” See Baumgartel Supp. Decl. at ¶ 2. As any document responsive to
Plaintiff’s request must necessarily involve Mr. Abramoff, this search term is sufficiently broad
to capture all responsive documents. 5 It is also worth noting that, because LAO is not involved
in media relations, see id., it is not particularly surprising that its search yielded no responsive
documents.
As to the search conducted by the Criminal Division, Plaintiff raises several objections.
First, Plaintiff points out that the Central Criminal Division Index File (“CRM-001”) was only
searched using the term “Jigsaw Productions.” If CRM-001 were likely to contain responsive
documents, this search would not have been sufficient. But as explained by Criminal Division
Trial Attorney Kristin Ellis in her initial Declaration, CRM-001 was only searched in order to be
consistent with Criminal Division general practice. See Ellis Decl. ¶ 9. In fact, the Criminal
4
This fact further undermines Plaintiff’s argument regarding Mr. Hickenlooper and Mr.
Spacey. Because the BOP’s search of Mr. Abramoff’s Central File was broad enough to
encompass any documents related to any media requests contained in that file, it would have
unearthed any such documents related to Mr. Hickenlooper and/or Mr. Spacey if such documents
existed.
5
For the same reason, there is no merit to Plaintiff’s complaint that the Public
Information Officer used the term “Abramoff” to search her files. See Pl.’s Mem. at 5.
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Division did not expect to find responsive records in CRM-001 because the database is used
track the names of subjects or targets of investigation, and “not to collect/catalog the name of
every individual who might have some tangential connection to an investigation or prosecution,
such as a reporter who might want to interview a defendant . . . .” Ellis Supp. Decl. ¶ 2; see also
Ellis Decl. ¶ 9. Therefore, the fact that the search terms used to search CRM-001 were not
Plaintiff also objects to the fact that the Criminal Division did not specify the search
terms used by the attorneys who were asked to search their files for responsive records. See Pl.’s
Mem. at 6. As discussed in the Ellis Declaration and the Ellis Supplemental Declaration, Public
Integrity Section (“PIN”) Trial Attorney Mary K. Butler was the individual primarily responsible
for issues relating to media access to Mr. Abramoff while he was incarcerated. See Ellis Decl.
¶ 12; Ellis Supp. Decl. ¶ 3. As explained by the Criminal Division, “Ms. Butler searched her
records/e-mails using the names of the individuals with whom she communicated about media
interviews of Jack Abramoff, and media requests/attempts to interview him, while he was
incarcerated.” Ellis Supp. Decl. ¶ 3. PIN Trial Attorney M. Kendall Day conducted the same
search. Id. Finally, Fraud Section Trial Attorney Nathaniel Edmonds conducted a search using
the terms “Gibney” and Ms. Butler’s name. Id. ¶ 4. This search was sufficiently broad because
Mr. Edmonds determined that all of his communications regarding media access to Mr.
Abramoff involved Ms. Butler. Id. Furthermore, Mr. Edmonds’ involvement in this issue was
6
Nonetheless, “[i]n an abundance of caution,” the Criminal Division ran another search
on CRM-001 using the search terms “Alex Gibney,” “Zena Barakat,” and “George
Hickenlooper,” and came up with no responsive documents. Ellis Supp. Decl. ¶ 2.
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In sum, the searches conducted by the BOP and the Criminal Division were reasonably
calculated to locate all responsive records. Both components identified the likely sources of
responsive documents and conducted searches that were broad enough to encompass Plaintiff’s
entire request. Plaintiff attempts to undermine the adequacy of these searches by speculating that
certain documents should have existed and were not found. However, where, as here, a
defendant has provided affidavits describing the searches in detail, and those searches were
responsive to the FOIA request, this kind of speculation cannot be a basis for calling a search
into question. Plaintiff’s arguments to the contrary cannot withstand scrutiny, and this Court
should grant summary judgment to the DOJ on the adequacy of its search.
II. The Criminal Division, the BOP, and the FBI Properly Withheld Records Under
Applicable FOIA Exemptions
In order to obtain summary judgment, an agency bears the burden of justifying its
§ 552(a)(4)(B). To satisfy that burden, the agency must provide declarations that identify the
information at issue and the bases for the exemptions claimed. See Summers v. Dep’t of Justice,
140 F.3d 1077, 1080 (D.C. Cir. 1998). Courts review de novo the agency’s use of a FOIA
exemption to withhold documents. Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007). But as has
[T]he Court may grant summary judgment based solely on information provided
in an agency’s affidavits or declarations if they are relatively detailed and when
they 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.”
Strunk v. U.S. Dep’t of Interior, --- F. Supp. 2d ---, No. 10-0066 (RJL), 2010 WL 4780845, at *2
(D.D.C. Nov. 24, 2010) (quoting Military Audit Project v. Casey, 656 F.2d 724, 738
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faith, which cannot be rebutted by ‘purely speculative claims about the existence and
discoverability of other documents.’” SafeCard Servs., 926 F.2d at 1200 (quoting Ground
Saucer Watch, 692 F.2d at 771); see also Strunk, 2010 WL 4780845, at *2. “Ultimately, an
plausible.” Wolf, 473 F.3d at 374-75 (internal quotation marks and citations omitted).
In this case, the Criminal Division, the BOP, and the FBI processed the responsive
documents in accordance with FOIA and withheld certain information pursuant to FOIA
Exemptions 2, 6, 7(C), and 7(F). 7 As an initial matter, Defendant notes that Plaintiff does not
challenge the withholding of certain categories of material. Plaintiff specifically mentions: (1)
the BOP’s Category 4 (the names and contact information of BOP law enforcement personnel);
(2) the three pages of National Crime Information Center (NCIC) forms that were fully redacted
and were part of the BOP’s Category 1, see Baumgartel Decl. ¶¶ 13, 32; (3) the Criminal
Division’s Category B (Mary K. Butler’s email address and phone number); and (4) the Criminal
Division’s Category D (the name and email address of an FBI Special Agent). See Pl.’s Mem. at
9 n.3. Plaintiff also appears not to challenge the information withheld in the FBI Categories
7
Plaintiff notes that the FBI invoked Exemption 2 (high) – or “high 2" – to withhold the
internal telephone number and email address of an FBI Special Agent, and that this is
inconsistent with Milner v. Dep’t of Navy, 131 S. Ct. 1259 (2011), which was decided after the
DOJ submitted its Motion for Summary Judgment. See Pl.’s Mem. at 3 n.1; Def.’s Mem. at 12.
However, this information was also withheld pursuant to Exemptions 6 and 7(C), see Def.’s
Mem. at 12, and Plaintiff does not actually challenge this withholding, see Pl.’s Mem. at 3 n.1.
8
Plaintiff explicitly states that it is challenging the withholding of the materials in the
BOP’s Category 3 – that is, information regarding communication between Mr. Abramoff and
his attorney. See Pl.’s Mem. at 9 n.3. However, Plaintiff does not appear to address this
category of documents anywhere else in its brief, instead focusing exclusively on the names and
other identifying information of third parties who sought to visit and/or interview Mr. Abramoff
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Thus, the vast majority of the withholdings challenged by Plaintiff involve third-party
information contained in the components’ records – specifically, the name, contact information,
and other identifying information of individuals who visited or sought to visit Mr. Abramoff in
prison; as well as information about whether or not Mr. Abramoff decided to to participate in
Exemptions 6, 7(C), and 7(F), and processed and released all reasonably segregable information
Plaintiff’s first argument against the invocation of the various exemptions in this case is
that the records withheld pursuant to Exemption 7 were not created for law enforcement
purposes. See Pl.’s Mem. at 7-9. Plaintiff is correct that for Exemption 7(C) or 7(F) to apply,
the record at issue must have been compiled for law enforcement purposes. “In assessing
whether records are compiled for law enforcement purposes, . . . the focus is on how and under
what circumstances the requested files were compiled, . . . and ‘whether the files sought relate to
Justice, 284 F.3d 172, 176–77 (D.C. Cir. 2002) (citations omitted). The Criminal Division and
the BOP, 9 as law enforcement agencies, are entitled to deference when they identify materials as
having been compiled for law enforcement purposes under Exemption 7. See, e.g., Ctr. for Nat’l
while he was in prison. Therefore, as to BOP Category 3, the DOJ refers the Court to its
argument in its initial brief, see Def.’s Mem. at 22-23, which Plaintiff has not attempted to
refute.
9
Plaintiff appears to concede that the records withheld by the FBI pursuant to Exemption
7(C) were compiled for law enforcement purposes.
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Sec. Studies, 331 F.3d at 926; Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir.
1999).
It is indisputable that the BOP records at issue in this case were compiled for law
enforcement purposes. The BOP is a law enforcement agency responsible for housing inmates
and ensuring the secure and orderly operation of prisons. As part of this role, the BOP must
regulate access by third parties to its facilities and inmates, and must be concerned with their
activities once they enter prison facilities, including the conducting of interviews with inmates.
The documents at issue are directly related to this law enforcement purpose, as they were
compiled in connection with the incarceration of Mr. Abramoff. See Baumgartel Decl. ¶ 27. In
fact, courts in this District have concluded that inmate records, including those in an inmate’s
Central File, are compiled for law enforcement purposes. See, e.g., Romero-Cicle v. U.S. Dep’t
of Justice, No. CIV A 05-2303 RJL, 2006 WL 3361747, at *5 (D.D.C. Nov. 20, 2006). Thus, the
BOP’s records at issue in this case meet the threshold requirement of Exemption 7.
Plaintiff also takes issue with the Criminal Division’s justification for categorizing the
documents at issue as law enforcement records. See Pl.’s Mem. at 8. In order to address these
concerns, the Criminal Division has elaborated on its reasoning in the Ellis Supplemental
Ellis Supp. Decl. ¶ 5. Thus, Plaintiff is incorrect when it argues that “the records have nothing to
do with DOJ’s investigation of Abramoff and the Criminal Division.” Pl.’s Mem. at 8. The
records were directly related to ongoing Criminal Division investigations, and thus fall squarely
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within the Criminal Division’s law enforcement mission. Therefore, the Criminal Division has
Again, all of the records now at issue were withheld pursuant to Exemptions 6 and 7(C) –
FOIA’s privacy exemptions.11 Defendant directs the Court to its full discussion of the standard
governing these exemptions in its initial brief. See Def.’s Mem. at 13-16. Here, it’s enough to
state that in deciding whether the exemptions apply, the agency is required to balance the
individual’s right to privacy against the public’s interest in disclosure. See U.S. Dep’t of Justice
v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 764 (1989); see also Dep’t of Air Force
v. Rose, 425 U.S. 352, 372 (1976); Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1281 (D.C.
Cir. 1992); Reed v. NLRB, 927 F.2d 1249, 1251 (D.C. Cir. 1991).
Plaintiff argues both that there are no privacy rights involved in this case and that there is
a strong public interest in the release of the withheld material. See Pl.’s Mem. at 10-17.
Defendant disagrees on both counts. The individuals whose information Plaintiff’s seek have at
least some privacy interest at stake, and no public interest justifies an invasion of their privacy.
Ultimately, Plaintiff seeks “information about private citizens that is accumulated in various
governmental files but that reveals little or nothing about an agency’s own conduct.” Reporters
Comm., 489 U.S. at 773. This is simply not the purpose of FOIA. See id.
10
In addition, even if the Court were to find that the threshold requirement of Exemption
7 has not been satisfied, all of the records at issue were also properly withheld pursuant to
Exemption 6.
11
A small number of redactions – the BOP’s Category 5 – were also based on Exemption
7(F). See infra at 26-27.
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The first step of the balancing test under Exemptions 6 and 7(C) is to determine whether
there is a privacy interest in the material to be withheld. In Reporters Committee, the Supreme
Court rejected a “cramped notion of personal privacy” under the FOIA’s exemptions and instead
emphasized that “privacy encompass[es] the individual’s control of information concerning his
or her person.” 489 U.S. at 763. The Court noted that “[p]rivacy is the claim of individuals . . .
to determine for themselves when, how, and to what extent information about them is
communicated to others.” Id. at 764 n.16 (quotation marks and citation omitted). Privacy is of
particular importance in the FOIA context because a disclosure required by FOIA is a disclosure
to the public at large. See Painting & Drywall Work Pres. Fund, Inc. v. Dep’t of Housing &
Urban Dev., 936 F.2d 1300, 1302 (D.C. Cir. 1991). For a privacy interest to be cognizable under
FOIA, it must be “substantial” – but in the FOIA context, “substantial . . . means less than it
might seem. A substantial privacy interest is anything greater than a de minimis privacy
interest.” See Multi Ag Media LLC v. Dep’t of Agriculture, 515 F.3d 1224, 1229-30 (D.C. Cir.
2008); see also Consumers’ Checkbook, Ctr. for Study of Servs. v. U.S. Dep’t of Health &
The BOP, the Criminal Division, and the FBI all withheld the names, contact
information, and other identifying information of third parties who sought to visit and/or
interview Mr. Abramoff while he was incarcerated. The D.C. Circuit has described the
rule” that exempts disclosure of such information “unless the requester can show (1) compelling
evidence that the agency is engaged in illegal activity, and (2) that the information is necessary
to confirm or refute that evidence.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 946 (discussing
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Exemption 7(C)); see also Schrecker II, 349 F.3d at 661 (noting that “our decisions have
appearing in law enforcement records” and describing this as “a categorical rule”); Fischer v.
U.S. Dep’t of Justice, 596 F. Supp. 2d 34, 47 (“The D.C. Circuit has consistently held that
Exemption 7(C) protects the privacy interests of all persons mentioned in law enforcement
records . . . .” (emphasis added)); Schoenman, 573 F. Supp. 2d at 151. Even third parties
“merely mentioned” in law enforcement files have a privacy interest at stake. See Amuso v. U.S.
Furthermore, as the Supreme Court has explained, “FOIA’s central purpose is to ensure
that the Government’s activities be opened to the sharp eye of public scrutiny, not that
information about private citizens that happens to be in the warehouse of the Government be so
disclosed.” Reporters Comm., 489 U.S. at 774 (emphasis in original). Therefore, “[e]ven
Horowitz v. Peace Corps, 428 F.3d 271, 279 (D.C. Cir. 2005) (discussing Exemption 6); see also
U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 600 (1982) (finding that
“[i]nformation such as place of birth, date of birth, date of marriage, employment history, and
comparable data is not normally regarded as highly personal” and yet “would be exempt from
any disclosure that would constitute a clearly unwarranted invasion of personal privacy”); Nat’l
Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (“This court . . . has
observed that Exemption 6 ‘is designed to protect personal information in public records, even if
it is not embarrassing or of an intimate nature.” (quoting Nat’l Ass’n of Retired Fed. Emps. v.
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In general, Defendant directs the Court’s attention to its initial brief, which explains at
length why the third parties whose names and other information were redacted from the released
documents have a privacy interest in such information. See Def.’s Mem. at 16-25. Plaintiff now
asserts several arguments intended to show why there are no privacy interests at stake in this
First, Plaintiff states that the individuals involved have made public statements about
their attempts to interview Mr. Abramoff, and thus are actually seeking publicity. See Pl.’s
Mem. at 11-12. As an initial matter, Defendant notes that Plaintiff is making several
assumptions about the identity of the individuals whose names and information were redacted.
While Plaintiff alleges that Mr. Gibney and Mr. Hickenlooper have spoken publicly about their
attempts to interview Mr. Abramoff, the names and identifying information of other individuals
Furthermore, even accepting Plaintiff’s assertion that some of the third parties have made
public statements about their contact with Mr. Abramoff, this still does not eliminate all privacy
interest. Some of the redacted information is more personal in nature than just names. For
example, in several places, contact information and government identification numbers were
redacted. See generally Baumgartel Decl. Ex. J (Index of Withheld Records). Finally, the fact
that some of the redacted information might be publicly available from other sources does not
mean that FOIA’s privacy exemptions cease to apply. See U.S. Dep’t of Defense v. Fed. Labor
Relations Auth. (“FLRA”), 510 U.S. 487, 500 (1994) (“An individual's interest in controlling the
12
Again, Defendant assumes for the purposes of this discussion that the names and
identifying information of Mr. Hickenlooper and Mr. Gibney were among the redactions.
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dissemination of information regarding personal matters does not dissolve simply because that
information may be available to the public in some form.”); Reporters Comm., 489 U.S. at 767-
68; Barnard v. Dep’t of Homeland Sec., 598 F. Supp. 2d 1, 12 (D.D.C. 2009) (“Plaintiff's
argument is foreclosed by a long line of cases recognizing that individuals maintain an interest in
their privacy even where some information is known about them publicly.”). In sum, the fact
that some of the third parties whose information was redacted may have stated publicly that they
attempted to or did interview Mr. Abramoff while he was incarcerated does not justify the
release of the names, contact information, and other identifying information of those third
parties, not to mention all of the other individuals whose information was redacted.
Second, Plaintiff argues that because the redacted information is professional in nature,
individual privacy interests are diminished. See Pl.’s Mem. at 12-13. However, the only D.C.
Circuit case that Plaintiff cites to support this proposition is Sims v. CIA, 642 F.2d 562 (D.C.
Cir.), a more than 30-year-old case in which the Court stated that “Exemption 6 was developed
to protect intimate details of personal and family life, not business judgments and relationships.”
Id. at 575. That view of Exemption 6 has clearly been superseded by more recent D.C. Circuit
cases, which have held that information need not be of an intimate nature to be protected. See,
e.g., Horowitz, 428 F.3d at 279; Washington Post Co., 456 U.S. at 600; Norton, 309 F.3d at 32;
Horner, 879 F.2d at 875; see also Barnard, 598 F. Supp. 2d at 11 (“Exemption 6 protects from
disclosure all information that ‘applies to a particular individual’ in the absence of a public
While records that relate to an individual’s business or profession might have diminished
privacy protections under FOIA, it is clear that those rights are not entirely absent. Information
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in business records that reveal something about a particular individual may still be protected,
even where that individual was acting in a professional capacity. See Bigwood v. U.S. Agency
for Int’l Dev., 484 F. Supp. 2d 68, 75-76 (D.D.C. 2007) (upholding withholding of information
about particular USAID grantees because to reveal such information would be to reveal identities
of particular individuals); Appleton v. Food and Drug Admin., 451 F. Supp. 2d 129, 145 (D.D.C.
2006) (holding that documents were protected by Exemption 6 where they revealed professional
information about pharmaceutical company employees); see also Consumers’ Checkbook, 554
F.3d at 1050-51; Multi Ag Media, 515 F.3d at 1228-29; Oregon Natural Desert Ass’n v, U.S.
Dep’t of the Interior, 24 F. Supp. 2d 1088, 1089 (D. Or. 1998) (district court, in a case cited by
Plaintiff, concluded that “information about commercial interests should not be categorically
excluded from” FOIA’s privacy exemptions). Furthermore, because an individual who seeks to
visit an inmate in prison must provide quite a bit of personal information – such as date of birth
and social security number – much of the redacted information that Plaintiff seeks is personal in
nature. In general, records that reflect personal information about an individual are exempt from
disclosure even if the information was collected in a professional context. See Bigwood, 484 F.
Supp. 2d 68, 75-76 (D.D.C. 2007); Hill v. Dep’t of Agriculture, 77 F. Supp. 2d 6, 8 (D.D.C.
1999).
It should also be noted that where courts have suggested that information about third
they have done so in the context of Exemption 6. See, e.g., Sims, 642 F.2d 562; Fuller v. CIA,
No. 04-253 (RWR), 2007 WL 666586 (D.D.C. Feb. 28, 2007). It seems that the same logic does
not apply to Exemption 7(C). As previously discussed, “the names of third-parties in law
enforcement records are almost always exempt from disclosure.” Barnard, 598 F. Supp. 2d at
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21; see also Kishore v. U.S. Dep’t of Justice, 575 F. Supp. 2d 243, 257 (noting that “third-party
identifying information is ‘categorically exempt’ from disclosure under Exemption 7(C)”); supra
at 15-16. Plaintiff has not cited, and Defendant is not aware of, any cases that suggest that this
categorical rule loses force simply because the third parties mentioned were operating in a
professional or business capacity. Therefore, even if the Court were to conclude that the third
parties in this case have diminished privacy protection under Exemption 6, the same need not be
Finally, because there is no public interest in the release of the redacted information (as
discussed below), even if the Court were to conclude that the privacy interests at issue in this
case are diminished, that would not foreclose the application of Exemptions 6 and 7(C). See
FLRA, 510 U.S. at 500 (even “a very slight privacy interest” is sufficient to outweigh a complete
Third, Plaintiff asserts that the privacy interests of the unnamed individuals are somehow
reduced because Plaintiff is able to discern the identity of some of the individuals by examining
the unredacted portions of the documents. See Pl.’s Mem. at 13-14. This argument has been
explicitly rejected by numerous courts. See, e.g., Schoenman, 573 F. Supp. 2d at 149 (“[E]ven if
Plaintiff is correct that he can guess the individual's identity, ‘the fact that Plaintiff may deduce
the identities of individuals through other means . . . does not diminish their privacy interests.’”
(quoting Shores v. FBI, 185 F. Supp. 2d 77, 83 (D.D.C.2002) (emphasis in original))); see also
Weisberg, 573 F.2d at 1491; Taylor v. Dep’t of Justice, 268 F. Supp. 2d 34, 38 (D.D.C. 2003)
(“[T]he fact that the requestor might be able to figure out some or all of the individuals’
identities through other means, or the fact that their identities have already been disclosed, does
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not diminish their privacy interests in not having the documents disclosed.”). These holdings
make perfect sense in light of the fact that a FOIA release is considered a release to the world,
not just to the individual requester. See Nat’l Archives and Records Admin. v. Favish, 541 U.S.
contends that the Criminal Division withheld his name from a single email, and that they should
not have done so given that he is deceased. See Pl.’s Mem. at 14. Even assuming, arguendo,
that the name or other personal information of Mr. Hickenlooper or any other deceased
individual was withheld, Plaintiff fails to recognize that there is more than just one privacy
interest at issue here. As discussed below, Mr. Abramoff retains some privacy interest in who he
Furthermore, a person’s death does not necessarily vitiate his or her privacy interest.
“[T]he death of the subject of personal information does diminish to some extent the privacy
interest in that information, though it by no means extinguishes that interest; one's own and one's
relations' interests in privacy ordinarily extend beyond one's death.” Schrecker v. Dep’t of
Justice, 254 F.3d 162, 166 (D.C. Cir. 2001) (“Schrecker I”); see also Schrecker II, 349 F.3d at
661 (“[T]he fact of death, . . . while not requiring the release of information, is a relevant factor
to be taken into account in the balancing decision whether to release information.” (internal
quotation marks and citation omitted)); Grandison v. U.S. Dep’t of Justice, 600 F. Supp. 2d 103,
114 (D.D.C. 2009) (quoting Schrecker I). In this case, even if a particular individual’s privacy
interest has been attenuated by his or her death, this diminished privacy interest still outweighs
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the absence of any bona fide public interest in the withheld information. See Piper v. U.S. Dep’t
Even if the Court were to accept all of Plaintiff’s arguments about the privacy interest of
the unnamed third parties, the documents were still properly withheld based on Mr. Abramoff’s
privacy interest in information about who visited him or attempted to visit him in prison. The
identity of Mr. Abramoff’s visitors or would-be visitors is the type of personal information that
Exemptions 6 and 7(C) is intended to protect – that is, personal information about a private
individual that happens to appear in government records. In addition, at least some of the
redacted information would reveal whether Mr. Abramoff consented to or declined certain
interview requests while he was incarcerated. See Baumgartel Decl. ¶ 34. While perhaps not as
were “intended to cover detailed Government records on an individual which can be identified as
applying to that individual.” Washington Post Co., 456 U.S. at 602 (citation omitted) (discussing
Exemption 6).
arguing that Mr. Abramoff’s “status as a prisoner diminishes any privacy interest he may have.”
Pl.’s Mem. at 14. However, the cases that Plaintiff cites in support of this proposition come from
the Fourth Amendment context, and have absolutely no relevance to the FOIA context. It is one
thing to say that prisoners have no privacy rights vis-à-vis prison officials, who may search
prisoners’ cells and monitor their phone calls. It is quite another thing to suggest, as Plaintiff
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does, that prisoners have sacrificed their privacy rights as to the rest of the world. Again,
Finally, Plaintiff’s statement that the “BOP publically posts on its own website
does not argue that Mr. Abramoff’s status as a prisoner is private, but simply that he has a
privacy interest in information about who visited him in prison and what interview requests he
accepted or declined. The BOP certainly does not post this information on its website.
protectable privacy interest, it must engage in the second step of the balancing test – that is, the
agency must weigh the privacy interest against the public interest in disclosure, if any. See
Reed, 927 F.2d at 1251. However, because the only relevant public interest under FOIA is “the
citizens’ right to be informed about ‘what their government is up to,’” Reporters Comm., 489
U.S. at 773, an agency must analyze the public interest by considering “the nature of the
requested document and its relationship to ‘the basic purpose of [FOIA] to open agency action to
the light of public scrutiny.” Id. at 772 (internal quotation marks and citation omitted). This
public interest is “not fostered by disclosure of information about private citizens that is
13
Plaintiff also takes issue with the fact that the Criminal Division withheld part of one
email that indicated whether Mr. Abramoff and another individual received compensation for a
movie about Mr. Abramoff. See Pl.’s Mem. at 15. Plaintiff seems to suggest that because the
Criminal Division released a portion of the relevant email showing that this topic was discussed,
it has effectively revealed whether Mr. Abramoff received funds and the amount of those funds.
This argument is nonsensical. The portion of the email that was released reveals nothing about
Mr. Abramoff’s personal financial information or the personal financial information of the
unnamed third party. But the information that Plaintiff now seeks falls squarely within FOIA’s
privacy protections. See Consumers’ Checkbook, 554 F.3d at 1050 (“We have consistently held
that an individual has a substantial privacy interest under FOIA in his financial information,
including income.”).
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accumulated in various governmental files but that reveals little or nothing about an agency’s
own conduct.” Id. at 773. When the subject of the information requested under FOIA is a
private citizen and “when the information is in the Government’s control as a compilation, rather
than as a record of ‘what the Government is up to,’ the privacy interest . . . is in fact at its apex
while the FOIA-based public interest in disclosure is at its nadir.” Id. at 780.
absence of public interest. U.S. Dep’t of Defense v. Fed. Labor Relations Auth., 510 U.S. 487,
500 (1994); see also Consumers’ Checkbook, 554 F.3d 1046, 1056. “If there is no public interest
in the disclosure of certain information, ‘something, even a modest privacy interest, outweighs
nothing every time.’” Horowitz, 428 F.3d at 278 (quoting Horner, 879 F.2d at 879).
Plaintiff contends that there is a significant public interest in the information it seeks. See
Pl.’s Mem. at 15-16. But this contention is based entirely on Plaintiff’s allegations that the DOJ
improperly or illegally interfered with media access to Mr. Abramoff. See id. Where the public
interest being asserted by a Plaintiff is to reveal government wrongdoing, “then the requester
must ‘produce evidence that would warrant a belief by a reasonable person that the alleged
Government impropriety might have occurred.’” Boyd v, Criminal Div. of U.S. Dep’t of Justice,
475 F.3d 381, 387 (D.C. Cir. 2007) (quoting Favish, 541 U.S. at 172). “Unsubstantiated
The problem for Plaintiff is that its allegations of Government wrongdoing are purely
speculative, and seem to be based only on the fact that certain members of the media were unable
to interview Mr. Abramoff. But this fact says nothing about the behavior of the DOJ. As
explained in the BOP’s Supplemental Declaration, in the event of a request from the media to
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interview an inmate, the inmate must be notified of the request and give his written consent. See
Baumgartel Supp. Decl. ¶ 5. Therefore, if a member of the media was unable to interview Mr.
Abramoff, the explanation could very well be that Mr. Abramoff declined to be interviewed.
Furthermore, even if the DOJ did discourage Mr. Abramoff to avoid giving interviews – which
Defendant neither confirms nor denies – Plaintiff has presented no evidence that this was illegal
or improper. As explained by the Criminal Division, Mr. Abramoff was cooperating with the
Government in ongoing criminal investigations. See Ellis Supp. Decl. ¶ 5. Thus, there may have
been very legitimate reasons for the DOJ to prefer that Mr. Abramoff not interact with members
of the media.
Furthermore, even if the Court were to conclude that there is sufficient evidence of
Government wrongdoing to raise a public interest, this interest has been satisfied by the
information already released to Plaintiff. Disclosure of the withheld names would not further
serve this interest. “‘[I]nformation about private citizens . . . that reveals little or nothing about an
agency’s own conduct’ does not serve a relevant public interest under FOIA.” Consumers’
Checkbook, 554 F.3d at 1051 (quoting Reporters Comm., 489 U.S. at 773); see also Schrecker,
349 F.3d at 661 (the public interest inquiry “should focus not on the general public interest in the
subject matter of the FOIA request, but rather on the incremental value of the specific
information being withheld”); U.S. Dep’t of State v. Ray, 502 U.S. 164, 178 (1991) (“We are
persuaded . . . that this public interest has been adequately served by disclosure of the redacted
interview summaries and that disclosure of the unredacted documents would therefore constitute
a clearly unwarranted invasion of the interviewees’ privacy.”). Plaintiff has offered no argument
to the contrary.14
14
In one paragraph, Plaintiff also argues that there is a public interest in knowing whether
Mr. Abramoff received fees for any interviews that he gave while incarcerated. See Pl.’s Mem.
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In sum, because several unnamed third parties and Mr. Abramoff have a substantial
privacy interest in the withheld information at issue in this case, and because no public interest
outweighs that privacy interest, the disclosure of the withheld information would constitute a
clearly unwarranted invasion of personal privacy. Therefore, the Criminal Division, the BOP,
In its initial release of documents, the BOP withheld three segments of an email chain
pursuant to Exemptions 6, 7(C), and 7(F). See Def.’s Mem. at 26; Baumgartel Decl. ¶¶ 40-41.
The BOP determined that this information, which was collected in connection with a criminal
investigation, could endanger the safety of a particular individual. See Baumgartel Decl. ¶ 40.
Defendant explained that revealing the specific nature of this information could undermine the
purpose of Exemption 7(F). See id. However, Defendant offered to provide an unredacted copy
of the document to the Court for in camera review. See Def.’s Mem. at 26.
Plaintiff now argues that the BOP has not offered a sufficient description of the withheld
material to justify its withholding. See Pl.’s Mem. at 17-18. The BOP has determined that it can
release one of the three withheld segments, and did so on April 14, 2011. See Baumgartel Supp.
Decl. ¶ 6. However, the BOP continues to believe that withholding of the other two segments is
justified under Exemptions 6, 7(C), and 7(F). See Baumgartel Supp. Decl. ¶ 7. Exemption 7(F)
protects from disclosure information compiled for law enforcement purposes where release of
such information “could reasonably be expected to endanger the life or physical safety of any
individual.” 5 U.S.C. § 552(b)(7)(F). Exemption 7(F) has a broad reach to protect the physical
at 16. However, Plaintiff presents absolutely no evidence to suggest that Mr. Abramoff received
fees, or that “DOJ was assisting Abramoff in circumventing these laws or preventing the victims
of his crimes from receiving recompense.” Id. at 16.
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safety of a wide range of individuals. See Garcia v. U.S. Dep’t of Justice, 181 F. Supp. 2d 356,
378 (S.D.N.Y. 2002) (“The Government is entitled to invoke this exemption where the safety of
the individual in question would be jeopardized if his or her identity were revealed.”). “Within
limits, the Court defers to the agency's assessment of danger.” Amuso, 600 F. Supp. 2d at 101.
The two withheld segments reveal details about Mr. Abramoff cooperation with the
participated in and how that cooperation was effectuated while he was in prison.” Baumgartel
Supp. Decl. ¶ 7. The BOP properly determined that this information could jeopardize Mr.
Abramoff’s physical safety. Furthermore, this is precisely the type of information that FOIA’s
privacy exemptions, and particularly Exemption 7(C), are intended to protect. See, e.g.,
Schrecker, 349 F.3d at 661, 666. Finally, this information is entirely unrelated to any public
interest asserted by Plaintiff – it says nothing about the operation of the DOJ or whether the DOJ
improperly hindered media access to Mr. Abramoff. See Barnard, 598 F. Supp. 2d at 13
(“Where, as here, the nexus between the information sought and the asserted public interest is
lacking, the asserted public interest will not outweigh legitimate privacy interests.”).
CONCLUSION
Because the Criminal Division, the BOP, and the FBI have conducted adequate searches
and produced all non-exempt responsive document to CREW, and because no further
granted to Defendant.
TONY WEST
Assistant Attorney General
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ELIZABETH J. SHAPIRO
Deputy Director
U.S. Department of Justice
Civil Division, Federal Programs Branch
28