                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA


CITIZENS FOR RESPONSIBILITY
AND ETHICS IN WASHINGTON

              Plaintiff,

      v.                                        Civil Action No. 11-754 (GK)

U.S. DEPARTMENT OF JUSTICE

              Defendant.


                                MEMORANDUM OPINION

      Plaintiff       Citizens      for   Responsibility              and     Ethics       in

Washington     ("CREW")    brings this action against Defendant United

States     Department      of   Justice       ("DOJ")       under     the     Freedom      of

Information     Act     ("FOIA"),     5   U.S.C.        §    552.     Plaintiff        seeks

materials relating to DOJ investigations of U.S.                        Representative

Don Young.

      This matter is presently before                   the Court       on Defendant's

Motion for Summary Judgment on Behalf of the Criminal Division

and Federal Bureau of Investigation                [Dkt.      No.     31],    Plaintiff's

Cross-Motion      for     Partial     Summary      Judgment           [Dkt.     No.     35]   1




Defendant's      Motion     for     Summary     Judgment       on      Behalf     of     the

Executive Office for United States Attorneys                        [Dkt. No.    37],    and

Plaintiff's      Cross-Motion       for   Partial _ $umma~y             Judgment        with

Respect    to Executive Office for United States Attorneys                              [Dkt.

No.   41] .    Upon     consideration      of     the       Motions,         Oppositions,
Replies,     and    the     entire    record       herein,        and     for    the   reasons

stated below, Defendant's Motions are granted in part and denied

in part,     and Plaintiff's Cross-Motions are granted in part and

denied in part.
                     1
I.      BACKGROUND

        CREW is a        non-profit corporation "committed to protecting

the rights of citizens to be informed about the activities of

government officials and to ensuring the integrity of government

officials." Compl.         ~   3 [Dkt. No. 1].

        On January 24, 2011, CREW submitted identical FOIA requests

to   three   DOJ     Components:       the     Criminal          Division,       the   Federal

Bureau of     Investigation          ("FBI")       and   the      Executive       Office     for

United States Attorneys             ("EOUSA")       It sought records related to

DOJ investigations of Rep. Young,                  "including but not limited to

DOJ's    decision        not   to    bring    criminal           charges     against       him."

Def. 's Statement of Undisputed Facts                    ~   2    [Dkt.    No.    3 7-4]     All

three DOJ Components categorically denied CREW's requests under

FOIA Exemptions 6 and 7(C), 5 U.S.C.                 §   552(b) (6),        (7) (C).

        The FBI and the EOUSA notified CREW of its right to appeal

the decision to DOJ' s Office of Information Policy                              ( "OIP") . On

February 7,    2011,       CREW appealed the FBI and the EOUSA denials.

1
  Unless otherwise noted, the facts set forth herein are
undisputed and drawn from the parties' Statements of Undisputed
Material Facts submitted pursuant to Local Civil Rule 7(h).
                                             -2-
On April 20,            2011,     before receiving a decision from OIP,                             CREW

filed the present lawsuit.

         The     parties        cross-moved        for       summary        judgment         regarding

DOJ' s    "categorical" denial of CREW's FOIA requests.                                  On January

10,      2012,        this     Court     denied    Defendant's            Motion       for     Summary

Judgment         and         granted     Plaintiff's          Cross-Motion             for     Partial

Summary        Judgment.         Citizens        for     Responsibility           and       Ethics     in

Wash. v. D.O.J.,               840 F. Supp.        2d 226         (D.D.C.    2012)      ("CREW I").

In    CREW       I,     the     Court     held     that       the    Government             could     not

categorically deny CREW's requests under Exemptions 6 and 7(C),

and      ordered        the      DOJ     Components          to     submit        Vaughn       indices

regarding any withheld or redacted documents.                                    Id.   at    236.     The

Court explained that once the indices were submitted,                                        it would

"make a specific individualized decision for each document as to

whether it should be redacted or totally withheld pursuant to

Exemption 6 and 7(C) ." Id.

         On    February          10 ,    2012,     Defendant             filed     a    Motion        for

Clarification regarding the                      scope of         this    Court's Order             [Dkt.

No.   21] .      On March 12,            2012,    this Court         issued a Minute Order

granting         Defendant's            Motion,        and   directed        that       Defendant's

Vaughn         index         "focus[]      on     those      records         related         to      U.S.

Department of Justice investigations of U.S.                                Representative Don



                                                  -3-
Young involving allegations of bribery and other illegal conduct

in the matter known as 'Coconut Road.'" 2

        The DOJ Components filed their Vaughn indices on April                    9,

2012.    On April 19,    2012,   the FBI released 61 pages of material

with no redactions,       271 pages redacted in part,             and withheld 3

pages in full under FOIA Exemption 7 (A)                 On or about April 23,

2012,     the   EOUSA    released   123     pages        of    material    with   no

redactions,     1 page   redacted in part,         and withheld 4 8 pages         in

full    under FOIA Exemptions 3,      5,    6,    and 7 (C).     On May 2,    2012,

the     Criminal   Division   released     31    pages    of    material   with   no

redactions,     31 pages redacted in part, and withheld 292 pages in

full under FOIA Exemptions 5, 6, and 7(C).

2
   CREW acknowledges   that  the Court's    order limited DOJ's
obligation to produce a Vaughn index to material related to
Coconut Road, but maintains in a footnote that DOJ is still
responsible for identifying and releasing any other documents
that are responsive to its FOIA request. Mem. in Partial Opp'n
to Def.'s Mot. for Summ. J. & In Support of Pl.'s Cross-Mot. for
Partial Summ. J. 4 n.2 [Dkt. No. 35] ("CREW's Opp'n to Criminal
Div. Mot."); Mem. in Partial Opp'n to Def.'s Mot. for Summ. J.
On Behalf of EOUSA & In Support of Pl.'s Cross-Mot. for Partial
Summ. J. 3 n.2 [Dkt. No. 40] ("CREW's Opp'n to EOUSA Mot.").

     The Criminal Division did not address this assertion. The
EOUSA insists in a footnote that this argument is an attempt to
seek reconsideration of the Court's ruling on the Government's
motion for clarification. Def. 's Combined Reply Br. in Support
of Its Mot. for Summ. J. on Behalf of the EOUSA & Br. in Opp'n
to Pl.'s Cross-Mot. for Partial Summ. J. 21 n.4 [Dkt. No. 45].
CREW did not respond to that argument in its reply. Given that
neither the Plaintiff nor the Government has fully addressed
this issue, and that it has no bearing on the instant Motions
and Cross-Motions, the Court will not resolve it at this time.
                              -4-
        On September 25,       2012,    DOJ filed       its     Motion for       Summary

Judgment on Behalf of the Criminal Division and FBI                          [Dkt.   No.

31]. On October 25,          2012,    CREW filed its Opposition and Cross-

Motion for Summary Judgment            [Dkt. Nos.      34,    35]. On November 19,

2012, DOJ filed its combined Opposition and Reply [Dkt. Nos. 38,

39]. On December 10, 2012, CREW filed its Reply [Dkt. No. 42].

        On   November   5,    2012,    DOJ     filed    its     Motion     for   Summary

Judgment on Behalf of the EOUSA                [Dkt. No.      37]. On November 30,

2012,    CREW   filed   its    Opposition and          Cross-Motion        for   Summary

Judgment     [Dkt. Nos. 40,     41]. On January 15, 2013, DOJ filed its

combined Opposition and Reply                [Dkt.   Nos.     44,   45].   On February

14, 2013, CREW filed its Reply [Dkt. No. 46].




                                         -5-
II.      STANDARD OF REVIEW

         The      purpose        of       FOIA           is        to         "pierce      the         veil      of

administrative secrecy and to open agency action to the light of

public       scrutiny."       Morley v.                C. I. A.,        508     F. 3d 1108,      1114         (D.C.

Cir.     2007)       (quoting Dep't of Air Force v.                               Rose,     425 U.S.          352,

361     (1976)) . FOIA "requires agencies to comply with requests to

make their records available to the public, unless the requested

records        fall     within      one   or more              of       nine     categories        of    exempt

material."           Oglesby v.       Dep' t       of Army,              79     F. 3d 1172,      1176         (D.C.

Cir. 1996)           (citing 5 U.S.C.          §       552 (a),         (b)).

        An     agency     that      withholds             information             pursuant        to     a    FOIA

exemption bears the burden of justifying its decision,                                                 Petroleum

Info.     Corp. v.       Dep't of the Interior,                          976 F.2d 1429,           1433        (D.C.

Cir.     1992)       (citing 5 U.S.C.              §    552 (a) (4) (B)),          and must submit an

index        of   all    materials         withheld,                referred         to     as     a     "Vaughn

Index." Vaughn v.             Rosen,      484 F.2d 820,                   827-28        (D.C.    Cir.     1973).

In determining whether an agency has properly withheld requested

documents under a             FOIA exemption,                  the district court conducts a

de      novo         review      of       the            agency's               decision.         5      u.s.c.
§    552 (a) (4) (B).

        "FOIA        cases    are     typically               and       appropriately            decided         on

motions        for     summary      judgment."                Gold       Anti-Trust        Action         Comm.,

Inc.    v.     Bd.    of Governors of Fed.                    Reserve Sys.,               762 F.       Supp.     2d

                                                        -6-
123, 130           (D.D.C. 2011)              (quoting Defenders of Wildlife v. Border

Patrol,       623 F. Supp. 2d 83, 87                      (D.D.C. 2009)). Summary judgment

will     be    granted            when        the     pleadings,          depositions,        answers    to

interrogatories,                  and     admissions           on    file,       together      with     any

affidavits or declarations,                           show that there is no genuine issue

as to any material fact and that the moving party is entitled to

judgment as a matter of law. See Fed. R. Civ. P. 56(c).

       In a FOIA case, the court may award summary judgment solely

on     the         basis         of      information           provided          in     affidavits       or

declarations               when        they     (1)    "describe          the    documents      and     the

justifications                   for     nondisclosure              with        reasonably      specific

detail;"            ( 2)        "demonstrate            that        the     information         withheld

logically falls within the claimed exemption;" and (3)                                          "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).          Such    affidavits       or

declarations are accorded                           "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.    S.E.C.,        926    F.2d 1197,           1200      (D.C.   Cir.    1991)

(quoting Ground Saucer Watch,                           Inc. v. C.I.A.,            692 F.2d 770,        771

(D.C. Cir. 1981)).



                                                        -7-
III. ANALYSIS

        The outstanding disputes fall                      into two categories.          First,

CREW     argues         that       the     Criminal      Division     and    the    EOUSA    have

improperly withheld information under Exemption 5.                                 Second,   CREW

argues that the Criminal Division and the EOUSA have improperly

withheld information under Exemptions                          6 and 7 (C) . 3      Each claim

will be addressed in turn.

        A.        Exemption 5

        Exemption 5 permits an agency to withhold "inter-agency or

intra-agency memorandums or letters which would not be available

by law to a party other than an agency in litigation with the

agency." 5 U.S.C.              §    552 (b) (5).     It "is interpreted to encompass,

inter        alia,      three       evidentiary          privileges:        the    deliberative

process           privilege,         the        attorney-client       privilege,       and    the

attorney work product privilege."                          Tax Analysts v.         I.R.S.,    294

F.3d 71, 76 (D.C. Cir. 2002)                      (citation omitted).

        CREW challenges the withholding and redaction of documents

based        on    both    the      attorney        work    product    doctrine,       and    the

deliberative            process       privilege.         Because    the     majority    of    the

documents          at     issue          were     appropriately       withheld       under    the


3
   CREW has elected to not challenge the FBI's wi thholdings,
CREW's Opp'n to Criminal Div. Mot. 5 n.4., and to not challenge
the one document withheld by the EOUSA under FOIA Exemption 3,
CREW's Opp'n to EOUSA Mot. 4 n.4.
                                                   -8-
attorney work product doctrine,                           the Court addresses that issue

first.

                1.     Attorney Work Product Doctrine

        The      attorney         work       product           doctrine              protects       materials

"prepared        in anticipation               of      litigation."                 McKinley v.          Bd.     of

Governors of          Fed.    Reserve          Sys.,          647    F. 3d 331,             341    (D.C.       Cir.

2011)     (citing Fed.            R.    Civ.      P.    26(b) (3)),                cert.    denied,       132 S.

Ct. 1026 (2012); E.E.O.C. v. Lutheran Soc. Servs., 186 F.3d 959,

968    (D.C. Cir. 1999)                (noting that doctrine protects documents or

other information that "can fairly be said to have been prepared

or     obtained because                of   the     prospect             of    litigation"           (citation

omitted)).        It extends to documents prepared or obtained related

to     "foreseeable          litigation,               even         if        no     specific       claim        is

contemplated."         Schiller v.             N.L.R.B.,             964 F.2d 1205,                1208    (D.C.

Cir.     1992)       (citation omitted),                 abrogated on                  other grounds             by

Milner v. Dep't of Navy, 131 S. Ct. 1259 (2011)

        CREW fails       to identify any specific document                                        that    it has

reason     to     believe         was       wrongfully          withheld              as     attorney          work

product.      Rather,        it        asserts         that    the        "D.C.        Circuit       has       long

required      agencies        to        justify invocation                     of     the    attorney work

product doctrine through the submission of detailed explanations

establishing the context in which the withheld information was

created." CREW's Opp'n to Criminal Div. Mot. 16; CREW's Opp'n to
                                                       -9-
EOUSA Mot. 14. It insists that the Government must identify the

circumstances          surrounding           the    initiation of             the    investigation

into    Young's        conduct,        the     dates        on    which       the    investigation

commenced        and      concluded,           and        the     specific          roles    various

employees played in the investigation. CREW's Opp'n to Criminal

Div. Mot. 17; CREW's Opp'n to EOUSA's Mot. 15.

        There    is no        support        for    CREW's broad assertion that                    our

Court of Appeals              requires       the     submission of            such information.

Although such information is often relevant                                   to a     deliberative

process privilege claim,                 where an agency has to establish the

context in which certain materials were used in order to show

that a document is "both predecisional and deliberative," it is

not    required in determining the applicability of                                    the attorney

work product          exemption.         See Ancient             Coin    Collectors         Guild v.

Dep't    of     State,        641    F.3d    504,     512        (D.C.   Cir.       2011)    (quoting

Mapother v.        Dep't        of    Justice,        3    F.3d      1533,      1537     (D.C.   Cir.

1993));    see also Wolfe v.                 Dep't of Health              &   Human Servs.,        839

F.2d    768,     774     (D.C.        Cir.    1988)        (noting       that       first   step    in

evaluating deliberative process claim is to "examine the context

in which the materials are used").

        Instead, the relevant inquiry in analyzing an attorney work

product       claim      is     far    narrower           and     focuses       on     whether     the

documents        in      question           were     prepared            in     anticipation        of
                                                   -10-
litigation. CREW does not explain why the contextual information

it seeks is necessary or relevant to that inquiry. Even if such

information was             relevant        to    a    claim of        attorney work product

privilege, it would not be applicable in this case.

          The    Government         has     filed      detailed,       specific      declarations

describing the various documents and explaining that they were

prepared in contemplation of litigation. CREW does not identify

any       reason       to   doubt    those        explanations,         and   thus,        they   are

entitled to a presumption of good faith.                                See SafeCard Servs.,

926 F. 2d at 1200            (noting that "[a] gency affidavits are accorded

a presumption of good faith,                      which cannot be rebutted by purely

speculative            claims")       (internal         quotation       marks     and      citation

omitted).

          Specifically,        the EOUSA asserts that the eleven documents

it seeks to withhold are                     "records or portions of records that

reflect         such    matters      as     potential          legal    charges      and    claims,

[U.S.      Attorney's         Office]        resource          allocations,       investigation

strategy including             [Assistant U.S. Attorney]                  handwritten notes,

and [Assistant U.S. Attorney]                         evaluations and opinions relating

to    a    third-party's            file"     that      were     "prepared      by    or     at   the

request or direction                             of an     [Assistant U.S.        Attorney]        in

anticipation of or during litigation." Decl. of Vinay J. Jolly                                      ~

19    ("Jolly Decl.")             [Dkt.     No.       37-2];    see also Def.'s Mot.              for
                                                  -11-
Summ.     J.   on Behalf of       the EOUSA 15          (asserting that documents

were "prepared by or for the use of attorneys during a potential

investigation undertaken to determine whether federal                              criminal

charges were warranted")             [Dkt. No. 37].

         The   detailed individual           descriptions       of    each document        in

the      EOUSA's   Vaughn     index       support     its      claims.      For    example,

specific entries in the EOUSA's Second Vaughn Index                               [Dkt.   No.

3 7-3]    describe individual documents as                  "notes regarding

next      investigation      steps"       (Document     1) ,     "analysis        regarding

legal      claims,     resources,         and       disposition"           (Document      2)   t



"notations       and   analysis      of   potential      legal       claims       and   trial

strategy"        (Document    3) ,     and     "legal    citations          and    analysis

related to potential claims"              (Document 4) . These are clearly the

type of documents protected by the work product doctrine.                                 See

Senate of Puerto Rico v.              Dep't of Justice,              823   F.2d 574,      586

(D.C. Cir. 1987)        (noting that "internal memoranda concerning the

status of a criminal investigation, prepared by DOJ attorneys in

the course of their law enforcement duties,                      are surely the kind

of documents sheltered by the work product doctrine").

         The   Criminal Division has            also established that              the vast

majority of the documents it seeks to withhold under Exemption 5




                                             -12-
are attorney work product. 4 The doctrine protects the records of

law enforcement investigations when the investigation is "based

upon a specific wrongdoing and represent[s] an attempt to garner

evidence    and    build       a     case    against       the    suspected      wrongdoer."

SafeCard Servs. ,        92 6 F. 2d at 12 02;           see also In re Sealed Case,

146 F.3d 881, 885         (D.C. Cir. 1998)              (noting that "when government

lawyers     prepare       a     document          in    the      course    of        an     active

investigation       focusing          upon       specific     events      and    a        specific

possible violation by a specific party," they have sufficiently

established       that    the        document       was     prepared      because         of   the

prospect of litigation)               (internal quotation marks and citation

omitted).

        The Criminal Division asserts that                       the documents withheld

"were     gathered       as        part     of     an     investigation         of        specific

wrongdoing during which the government was attempting to build a

case against a suspected wrongdoer." Decl. of John E. Cunningham

III ~ 17 ("Cunningham Decl.")                    [Dkt. No. 31-2]; see also id. ~ 20

(noting that      "[t] hese documents represent                    the trial         attorneys'

distillation        of        facts,         legal        analyses,       opinions,            and

recommendations about whether to prosecute Rep. Young").




4
  The Court evaluates Documents 40-43 and 53-58 under                                          the
deliberative process privilege. See infra sec. III.A.2.
                               -13-
         In addition/                    the Criminal Division s Vaughn index and the
                                                                               1




Cunningham             Declaration                        provide            specific                   individualized

information        about                 each           document         withheld               that     supports                      its

claims.     See Criminal Division s                            1
                                                                        Second Vaughn Index                               [Dkt.        No.

31-3]     (describing                    documents                 as    handwritten               interview                         notes

(Documents 1 and 2)                      1    a case summary with handwritten notations

(Document     4)   1           an    outline              and/or         timeline               (Document                 29)    1     and

containing        other              similar              descriptions) ;                  see     also               Cunningham

Decl.     (describing                    Document          6       as    "inventory              summary             11
                                                                                                                            (~        24);

Documents 7   1        8   1    and 48 as drafts of "Talking Points                                         11
                                                                                                                      discussing

potential charges               1    theories of prosecution                       1       and summaries of the

evidence     (~        25);              and           Documents         9   and           17     as    a             litigation

outline/timeline                    (~       26)   1    among       other descriptions).                                  Thus   1     the

Criminal Division has provided sufficient support for its claim

that    the majority of the documents withheld under Exemption 5

are attorney work product.

        The cases cited by CREW in support of its assertion that an

agency    must         provide                 additional               context            do     not       support                    its

position.    The first                       case CREW cites is Senate of Puerto Rico                                                          1




823    F.2d 574.               Although our Court                        of Appeals did reject                                       DOJ   1
                                                                                                                                               S


claim of attorney work product privilege in that case                                                            1        it did so

because the agency provided only a single                                              1    conclusory sentence

on the issue of whether the documents it sought to withhold were
                                                               -14-
prepared       "in contemplation of             litigation."        Id.     at    586       (noting

that    DOJ asserted that              the documents         "were prepared by Civil

Rights    Division attorneys                in anticipation of            litigation,"          but

made "no other reference .                    . to this essential element" of its

claim). As discussed above,                  this is the crucial element that an

agency        must    establish        to     justify     withholding            documents       as

attorney work product,                and the Government has successfully met

its burden on that element in the instant case.

        The    second case CREW cites,               SafeCard Services,                Inc. ,   92 6

F.2d 1197, directly contradicts its claim that more information

is   needed      to     justify       the    Government's        claims      of        privilege.

Although the Court of Appeals did note that                           "the work product

exemption,           read   over-broadly,            could       preclude         almost        all

disclosure from an agency with substantial responsibilities for

law enforcement," 92 6 F. 2d at 12 03,                    it then stated "that where

an   attorney        prepares     a       document   in    the     course    of        an   active

investigation          focusing       upon     specific      events       and      a     specific

possible       violation     by       a     specific      party,     it     has        litigation

sufficiently 'in mind'            for that document to qualify as attorney

work product."         Id. The Government has sufficiently demonstrated

that the withheld documents were created in the course of the

DOJ's     investigation         into         Rep.    Young's       potentially              illegal

actions with respect to the "Coconut Road" earmark.
                                              -15-
       Moreover, the original FOIA request specifically sought all

documents          related           to     DOJ's             investigations             of     Rep.        Young

concerning allegations of bribery and other illegal conduct. See

CREW I,       840    F.    Supp.          2d at       231.         Therefore,           the    scope of the

document request itself supports the Court's conclusion that the

Government's             documents          are       attorney                work      product     and       its

affidavits          should          be    credited.               See       Ancient      Coin     Collectors

Guild,    641       F. 3d at         509     ("Uncontradicted,                    plausible       affidavits

showing       reasonable            specificity and                    a     logical     relation       to    the

exemption are likely to prevail.")                                     (citing Larson v.            Dep't of

State, 565 F.3d 857, 862 (D.C. Cir. 2009)).

       One     set        of        documents             requires            further · analysis.             The

Criminal Division identified Document 40 as an email chain which

contains "ten emails sent between                                  [Criminal Division]             attorneys

and DOJ case agents"                     that    "contain a discussion of an article

identified          as     'Quiet           Justice               on        Coconut      Road     Earmark . ' "

Cunningham Decl.               '   36.     "One of the emails appears to have been

sent     to    a     DOJ           attorney          by       a    reporter            for     Congressional

Quarterly.         Specifically,            the emails involve a discussion among

[Criminal          Division]              attorneys               related         to      the     previously

mentioned article,                 and further discuss possible responses from

the    Criminal           Division              to        a       question           proffered         by     the

Congressional            Quarterly              reporter               to     a   DOJ        attorney."       Id.
                                                      -16-
Documents       41-43      and        53-58    are    email         chains     that       "contain    a

discussion amongst                  [Criminal Division]            attorneys related to the

previously       mentioned             email     from        the     reporter,        and     further

discussing possible ramifications to their investigation should

the Criminal Division respond to the inquiry proffered by the

reporter." Id.        ~    37.

        While   the       Criminal        Division       does        not     explain       how    these

documents were            "prepared in anticipation of litigation,"                               it is

not     necessary         to        resolve    this      issue,        which        has     not    been

specifically addressed by the parties, because it is clear that

these     documents            are     protected        by     the     deliberative           process

privilege.      The       Government           has    otherwise         fully       satisfied       its

burden of demonstrating that the withheld records were prepared

in    anticipation             of     litigation,       and,         thus,     that        they    were

properly withheld as attorney work product under Exemption 5.

        Finally, our Court of Appeals has ruled that "any part of a

document    prepared in anticipation of                            litigation,       not    just the

portions concerning opinions,                    legal theories,              and the like,          is

protected by the work product doctrine." Judicial Watch, Inc. v.

Dep't of Justice, 432 F.3d 366, 371 (D.C. Cir. 2005)                                      (citing Tax

Analysts v.      I.R.S.,            117 F.3d 607,        620       (D.C.     Cir.    1997)). Thus,

the Court finds that the agency has met its burden to disclose

all segregable portions of otherwise exempt records.                                       Sussman v.
                                                -17-
Marshals       Serv.,       494    F.3d 1106,        1117       (D.C.    Cir.      2007)       (noting

that      district       court        must       make        specific      finding         regarding

segregability of documents withheld under exemptions).

                2.     Deliberative Process Privilege

        The     deliberative           process       privilege          protects         udocuments

reflecting advisory opinions,                    recommendations, and deliberations

comprising part of a process by which governmental decisions and

policies are formulated,                    as well as other subjective documents

that reflect the personal opinions of the writer prior to the

agency's adoption of a policy.,,                         Tax Analysts,          2 94    F. 3d at       80

(citation omitted) . The ukey question" is whether disclosure of

the information uwould discourage candid discussion within the

agency." Access Reports v. Dep,t of Justice, 926 F.2d 1192, 1195

(D.C.        Cir.     1991)        (citation       and        internal       quotation              marks

omitted)

        To    invoke     the       deliberative          process     privilege,           an    agency

must      show       that      a      document          is     uboth       predecisional              and

deliberative."          Ancient        Coin Collectors Guild,                641       F.3d at        512

(quoting Mapother,             3 F.3d at 1537). A document is predecisional

if it was           ugenerated before the adoption of an agency policy"

and     deliberative          if      it     ureflects        the   give-and-take              of     the

consultative          process."        Judicial          Watch,     Inc.     v.        Food    & Drug

Admin.,       449     F.3d     141,        151   (D.C.       Cir.   2006)       (citing        Coastal
                                                 -18-
States Gas Corp.             v.    Dep't of Energy,                617 F.2d 854,             866       (D.C.

Cir. 1980)).

        First,        the    Court        finds      that     the       Criminal    Division            has

sufficiently          established            that     Documents          40-43     and       53-58       are

predecisional          and        deliberative.             The     Cunningham           Declaration

describes the content of these emails as discussions related to

"possible       responses          from      the     Criminal       Division       to    a    question

proffered       by     the    Congressional                Quarterly       reporter          to    a    DOJ

attorney"       and     "possible            ramifications          to    their     investigation

should the Criminal Division respond to the inquiry proffered by

the   reporter."        Cunningham Decl.               ~~     36-37.      Thus,     the documents

are predecisional because the documents were                                 "generated before

the    adoption       of     an    agency       policy,"          and     deliberative            because

there was a          "give-and-take"            regarding how to proceed.                      Judicial

Watch, 449 F.3d at 151 (citation omitted).

       Other members              of   this    District           Court    have     found         similar

documents       covered       by       the    deliberative          process        privilege.            See

Judicial Watch,            Inc. v. Dep't of Treasury,                     796 F.     Supp.         2d 13,

31    (D.D.C.    2011)       (finding         that     deliberative          process         privilege

covered email          exchange         "reflect [ing]            internal deliberations as

to how to respond to a press inquiry"); Judicial Watch,                                           Inc. v.

Dep't of Homeland Sec.,                  736 F.       Supp.    2d 202,       208    (D.D.C.            2010)

(holding    that        deliberative               process     privilege          covered          emails
                                                    -19-
"discuss [ing]         how       to   respond         to    on-going      inquiries           from    the

press") .      It     is    clear      that      email       exchanges         between        employees

regarding      how     to        respond    to      pending     press       inquiries          are    the

types of discussions that agency employees are entitled to have

without     fear of disclosure.                  See Tax Analysts,               2 94    F. 3d at       80

(noting that          the privilege protects                   "internal deliberations");

see also Access Reports,                   926 F.2d at 1195               (focusing inquiry on

whether     disclosure            "would      discourage        candid         discussion       within

the agency").

       CREW's generic arguments regarding the deliberative process

privilege       are        not    persuasive          with     regard      to    these         specific

documents.      First,        CREW argues that Defendants have not provided

enough      context         to    allow     the       Court     to    evaluate          whether       the

documents      were         appropriately           withheld.        They       insist        that     the

Government          must     identify       specific          information,           including         the

"function      and         significance        of     the     documents         in      the    agency's

decision     making          process,"        the      "nature       of    the       decisionmaking

authority vested in the office or person issuing the disputed

documents,"          the     "positions          in    the     chain      of     command        of    the

parties to the documents,"                    and "a timeframe during which these

activities took place."                 CREW's Opp'n to Criminal Div.                          Mot.     10

(citing Arthur Andersen & Co. v. I.R.S., 679 F.2d 254, 258                                           (D.C.

Cir.   1982)        (internal         quotation marks           and citations             omitted));
                                                  -20-
Reply Mem.         in Support of Pl.'s Cross-Mot.                           for Partial Summ.          J.

With Respect to the Criminal Division 3 [Dkt. No. 42].

       There       is no case          law which mandates                   that    an agency must

always      provide       the    extremely           detailed         descriptive          information

that   CREW     requests         in order           to     justify withholding               documents

under the deliberative process privilege.                                  In fact,    our Court of

Appeals has resisted making such categorical rules.                                         See,    e.g.,

Judicial Watch, 449 F.3d at 151 (refusing to adopt a categorical

rule that any undated entry cannot be considered predecisional).

Rather,      the    agency's       burden           is     to   submit       Vaughn        indices     and

affidavits that are "specific enough so that the elements of the

privilege      can be       identified."              Judicial            Watch,    Inc.     v.     Postal

Serv., 297 F. Supp. 2d 252, 257 (D.D.C. 2004).

       As    discussed          above,        the     Criminal            Division     has        provided

sufficient         information          for    the       Court       to    evaluate        whether     the

deliberative process privilege applies.                                Moreover,       with respect

to   these     documents          in    particular,             the       Criminal     Division        has

identified         many     of     the        specifics           that       CREW     requests.         It

disclosed      the     dates       of     the       emails,          see     Criminal        Division's

Second      Vaughn        Index        5-6,     8-9,        and       identified       the         parties

involved       with       sufficient           detail           to        understand        the      email

conversations without disclosing personal information that might

invade the privacy interests protected by Exemptions                                          6 and 7.
                                                    -21-
See     infra        sec.        III.B.      Thus,     CREW's             insistence           that   the

Government           has        failed      to      provide          sufficient           context       is

unpersuasive.

        Second,      CREW argues that the Government must disclose any

documents or portions of documents that articulate and form the

basis    for      the       final     decision       not        to    prosecute          Rep.    Young. 5

However,     the      deliberative           process       privilege             does    not    turn on

identifying such a decision. As the Supreme Court has observed,

"the need to protect pre-decisional documents does not mean that

the existence of the privilege turns on the ability of an agency

to    identify       a     specific         decision       in    connection             with    which    a

memorandum is prepared." N.L.R.B.                       v.      Sears,          Roebuck & Co.,        421

U.S. 132, 151 n.18               (1975); see also Access Reports,                         926 F.2d at

1196 ("Any requirement of a specific decision after the creation

of the document would defeat the purpose of the exemption.                                              At

the   time      of    writing         the    author        could          not    know    whether      the

decisionmaking              process         would     lead           to     a     clear        decision,

establishing the privilege, or fizzle, defeating it.")

      Moreover,            to   the   extent        that     the      public       is    entitled       to

disclosure of            "the reasons which did supply the basis                                  for an

agency policy actually adopted," see Sears,                                 421 U.S. at 152-53,


5
  The Court notes that the basis for the Government's decision
not to prosecute Rep. Young is not a matter of public record.
                               -22-
there     is     no    indication         that       these       emails     contain        the     final

decision not to prosecute Rep. Young or the reasons behind that

decision.         Rather,         the      Vaughn           index        and    the        Cunningham

Declaration           assert      that     these      documents           embody      a    discussion

within the agency about how to respond to a press inquiry. Thus,

CREW's     insistence          that      portions         of     these    documents         should be

disclosed        because       they      discuss          the    agency's       decision         not   to

prosecute Rep. Young is not persuasive.

        Third,        CREW     argues      that       the        Government      is       withholding

documents that contain "purely factual information" that are not

protected by the deliberative process privilege.                                   Purely factual

material       cannot        be     withheld          under        Exemption         5     unless      it

"reflects an exercise of discretion and judgment calls." Ancient

Coin Collectors Guild,                641 F.3d at 513              (citing Mapother,              3 F.3d

at 1539 (internal quotation marks omitted)). CREW criticizes the

Government's           argument           that       certain         fact       summaries           were

appropriately          withheld          because          they    involved      an        exercise     of

judgment       with     regard      to     what      evidence        or    testimony         might     be

relevant       or significant             to   a    prosecution.           CREW notes         that     "a

report does not become part of the deliberative process merely

because it contains only those facts which the person making the

report thinks material." CREW's Opp'n to Criminal Div.                                        Mot.     15

(citing    Nat'l        Whistleblower              Ctr.     v.    Dep't    of    Health       &    Human
                                                   -23-
Serv.,     849    F.    Supp.    2d     13,    37     (D.D.C.      2012)          ( citations     and

internal quotation marks              o~itted))


        No factual       summaries are at             issue here,            and there          is no

reason to believe that these email discussions contain "purely

factual     material"         that    should    be        segregated         and    provided       to

Plaintiff.       Unlike documents that have been found to be purely

factual,        these    documents        do        not    recount       underlying             facts

discovered       in     the    investigation          in    a    chronological             fashion,

Mapother,       3 F.3d at 1540, or summarize information that already

exists in the public domain,                  Petroleum Info Corp.,                  976 F.2d at

1438.    Even     if    some     underlying         facts       were    included          in    these

documents,        they        clearly     "reflect          an     agency,s          preliminary

positions or ruminations about how to exercise discretion,,                                       and

thus are protected by the deliberative process privilege. Id. at

1435.

        Therefore,       the    Court     concludes         that       the    Government          has

established that Documents 40-43 and 53-58 are protected by the

deliberative process privilege.                     Moreover,      the Court             concludes,

based on the agency,s detailed descriptions of these documents,

that     they    are     non-segregable.            Sussman,       494       F.     3d     at    1117

(requiring specific findings regarding segregability) .




                                              -24-
        B.         Exemption 6 and Exemption 7(C)

        Both the Criminal Division and the EOUSA withheld documents

and    redacted          portions          of     released           documents        claiming            that    the

information             was    protected           by     Exemption        6    and        Exemption           7 (C) .

Exemption 6,             applies to "personnel or medical files and similar

files        the        disclosure           of      which       would        constitute              a     clearly

unwarranted invasion of personal privacy." 5 U.S.C.                                              §       552(b) (6).

Exemption 7 (C)               applies to           "records or information compiled for

law enforcement purposes"                         when disclosure               "could reasonably be

expected           to    constitute             an      unwarranted            invasion          of        personal

privacy." 5 U.S.C.               §    552 (b) (7) (C).

        Exemption             7 (C)        is      "more        protective            of     privacy             than

Exemption          6    and     thus       establishes           a    lower     bar        for       withholding

material."          A.C.L.U.          v.     Dep't       of     Justice,        655    F.3d          1,    6     (D.C.

Cir.     2011)           (citation          and      internal          quotation           marks           omitted)

(noting        that       "Exemption              7(C)     permits        withholding                of

records if disclosure would constitute an 'unwarranted'                                                    invasion

of     personal          privacy,          while         Exemption        6     requires             a     '.clearly

unwarranted'             invasion          to     justify nondisclosure") .                      Because         CREW

does     not        dispute           that        the     requested           records        are           "records

compiled        for       law     enforcement              purposes"           and     thus          subject        to

Exemption 7 (C) ,             the Court need only consider whether the EOUSA



                                                         -25-
and the Criminal Division properly invoked Exemption 7 (C) . See

id.

        To     evaluate    whether     records        were        appropriately      withheld

under Exemption 7 (C)            the Court must            first    ascertain whether a

"legitimate privacy interest is implicated."                           Sussman,      494 F. 3d

at     1115.    If so,    the requester must               "(1)    show that the public

interest sought to be advanced is a significant one, an interest

more specific than having the information for its own sake, and

( 2)    show the       information is likely to advance that                       interest."

Id.    (citation omitted).

        CREW's     only    objection         to    the     Government's       withholdings

under Exemptions 6 and 7(C)               is that the Government has redacted

information        related      to    Rep.        Young,     under     the    umbrella          of

protecting       the     information of           "third parties        of    investigative

interest." CREW insists that this Court has already decided that

Young's        information      is   discoverable          and     should    be    disclosed,

citing CREW I, 840 F. Supp. 2d at 236.

        In CREW I,        this Court addressed the issue of whether DOJ

could categorically withhold all of the relevant documents under

Exemptions 6 and 7(C)            "because Rep. Young has a privacy interest

in the requested records and Plaintiff has failed to articulate

a public interest that overrides his privacy interest."                                   Id.   at

230.    The     Court    made   several      findings.        First,    the       Court    found
                                             -26-
that Rep. Young had a "substantial - although much diminished -

privacy interest."             Id.     at 233-34.       Second,          the Court found that

there      was       "substantial      public        interest"       in examining how DOJ

enforces          the     "law        governing        the        activities         of     federal

officials,"            particularly          considering          "the    explicit        direction

given by Congress              to the DOJ to            investigate the Coconut Road

matter."         Id.     at    235.     Finally,        the       Court     found     that     "the

balancing of Rep.              Young's privacy interest                   against     the public

interest in releasing the requested documents tips strongly in

favor of the public interest." Id. at 236.

        CREW      is    correct       that    this     Court      has     already     found    that

there      is    a     legitimate      privacy        interest       at    issue,     the    public

interest is significant, and the information sought is likely to

advance that interest. Thus, CREW has satisfied its burden. See

Sussman, 494 F.3d at 1115.

        The Government insists that the Court has only ruled on its

categorical denial,              and points to the Court's observation that

"once a Vaughn index is filed,                        the Court will make a specific

individualized           decision       for     each     document          as   to   whether     it

should be redacted or totally withheld pursuant to Exemption 6

and 7 (C) . "        CREW I,     840 F.       Supp.    2d at 236.           The Government is

correct that it is entitled to make individualized arguments as

to   why        particular       documents       might       be     appropriately          withheld
                                                -27-
under those Exemptions, but it has failed to actually make those

individualized arguments with respect to Rep. Young.

       The Vaughn indices,           Declarations,        and Briefs proffered by

the Government do not distinguish between Rep.                        Young and other

third parties.        They do not         at any point discuss              this Court's

findings      that     Rep.      Young's        privacy      interest       is      clearly

diminished      by    the     fact    that      DOJ's     investigations         into      his

activity are         "already a matter of public record."                     See   id.     at

233.    The    Government        also      does    not      address       this      Court's

observation that the public interest in this case is enhanced by

the "added, and decidedly uncommon fact" that Congress passed a

specific      piece    of     legislation        directing     DOJ     to     investigate

possible       improprieties          related       to      the       "Coconut           Road"

appropriation. Id. at 234.

       Currently,       the     Government's            argument     is     limited         to

boilerplate      language       regarding       private      and     public      interests

under these Exemptions.           It is sometimes appropriate to evaluate

the interests of broad categories of individuals such as agency

employees,     suspects,      and witnesses,        as the Government did here

and to which CREW did not object.                  However,       in a case cited by

the Government for support,               Kimberlin v.       Dep't of Justice,             139

F.3d 944      (D.C.    Cir.   1998),      our Court       of Appeals conducted an

individualized        analysis       of   the     interests        implicated       by     the
                                           -28-
potential      release        of    documents          related            to    a    particular,                  named

individual.       See    id.       at    949.        The    Government              cannot          treat          Rep.

Young as merely a             "suspect" whose name happens to be mentioned

in these records,             because this does not                        fulfill         its obligation

to balance the specific interests involved.

        The    burden    is       on     the    agency          to    justify         its       decision             to

withhold       information          pursuant          to    a        FOIA      exemption,               Petroleum

Info.    Corp.,      976 F.2d at 1433                (citing 5 U.S.C.                 §    552 (a) (4) (B)),

and     the    Government           has        not     done          so     with          regard             to     the

information related                to   Rep.     Young.         The       EOUSA and            the       Criminal

Division are          directed to          review the                documents          and portions of

documents      that     have       been withheld under Exemptions                                   6    and       7 (C)

and disclose such information,                        or justify more specifically why

it    should      not        do     so     considering                the         specific              interests

implicated.

        C.     In Camera Review

        CREW   has     requested          that       this       Court          conduct         an       in    camera

inspection      of     the    withheld          documents.             5       U.S.C.      §    552(a) (4) (B)

grants       courts     the       ability       to     "examine             the      contents            of        such

agency records          in    camera       to determine                whether          such records                 or

any   part     thereof        shall       be     withheld."               The       decision            regarding

whether or not          to grant          in camera review is                       left       to the broad

discretion of the district court. A.C.L.U.                                     v.    Dep't of Defense,

                                                 -29-
628 F.3d 612, 626 (D.C. Cir. 2011)                     (quoting Ctr. for Auto Safety

v. E.P.A., 731 F.2d 16, 20 (D.C. Cir. 1984)).

        Our Court of Appeals has made clear that when the agency

has met its burden by means of affidavits,                          "in camera review is

neither necessary nor appropriate."                         A.C.L.U.,     628    F.3d at    626

(quoting Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv.,                              608 F.2d

1381,    1387       (D.C.    Cir.    1979)).       In this case,        with the exception

of redacted information related to Rep. Young, the agencies have

provided affidavits and Vaughn indices                           that   "set[]    forth with

specificity the information withheld and the reasons preventing

its disclosure"             under Exemption 5.           A.C.L.U.,       628 F.3d at       627.

Thus, CREW's request for in camera review of those documents is

denied.

IV.     CONCLUSION

        For    the     foregoing          reasons,    the    Government's        Motions    for

Summary Judgment will be granted in part and denied in part, and

CREW's    Cross-Motions             for     Summary Judgment        will    be    granted    in

part    and        denied    in     part.    The     Government     will    be    ordered    to

submit        an     updated        Vaughn     Index        in   conformity       with     this

Memorandum Opinion no later than August 1, 2013.




                                               -30-
     An Order shall accompany this Memorandum Opinion.




June 12, 2013
                                      /s/i/~~. ~
                                     Gladys Kessl~   '          ~
                                     United States District Judge


Copies to: attorneys on record via ECF




                              -31-
