U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:19-cv-01278-RBW

LEOPOLD et al v. U.S. DEPARTMENT OF JUSTICE et al Assigned to: Judge Reggie B. Walton Case: 1:19-cv-00810-RBW Cause: 05:552 Freedom of Information Act

Date Filed: 05/02/2019 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

Plaintiff JASON LEOPOLD

represented by Charles D. Tobin BALLARD SPAHR LLP 1909 K Street, NW 12th Floor Washington, DC 20006 202-661-2218 Fax: 202-661-2299 Email: tobinc@ballardspahr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Merrick Jason Wayne LOEVY & LOEVY 311 N. Aberdeen Street Third Floor Chicago, IL 60607 (312) 243-5900 Fax: (312) 243-5902 Email: merrick@loevy.com ATTORNEY TO BE NOTICED

Matthew Topic LOEVY & LOEVY 311 N. Aberdeen Street Third Floor Chicago, IL 60607 (312) 243-5900 Fax: (312) 243-5902 Email: matt@loevy.com ATTORNEY TO BE NOTICED

Plaintiff

BUZZFEED, INC.
V. Defendant U.S. DEPARTMENT OF JUSTICE
Defendant DOJ OFFICE OF ATTORNEY GENERAL

represented by Charles D. Tobin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Merrick Jason Wayne (See above for address) ATTORNEY TO BE NOTICED
Matthew Topic (See above for address) ATTORNEY TO BE NOTICED
represented by Courtney Danielle Enlow U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street NW Washington, DC 20005 (202) 616-8467 Email: courtney.d.enlow@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth J. Shapiro U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 (202) 514-5302 Fax: (202) 616-8470 Email: Elizabeth.Shapiro@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Courtney Danielle Enlow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant DOJ DEPUTY ATTORNEY GENERAL
Defendant DOJ OFFICE OF SPECIAL COUNSEL
Defendant FEDERAL BUREAU OF INVESTIGATION

Elizabeth J. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Courtney Danielle Enlow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth J. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Courtney Danielle Enlow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth J. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Courtney Danielle Enlow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth J. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Interested Party
CABLE NEWS NETWORK, INC. Cable News Network, Inc.

represented by Charles D. Tobin (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew E. Kelley BALLARD SPAHR LLP 1909 K Street, NW 12th Floor Washington, DC 20006 (202) 508-1112 Fax: (202) 661-2299 Email: kelleym@ballardspahr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/02/2019
05/03/2019 05/03/2019
05/09/2019 05/15/2019

# Docket Text

COMPLAINT against DOJ DEPUTY ATTORNEY GENERAL,

1

DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF

SPECIAL COUNSEL, FEDERAL BUREAU OF

INVESTIGATION, U.S. DEPARTMENT OF JUSTICE ( Filing

fee $ 400 receipt number 0090-6097749) filed by JASON

LEOPOLD, BUZZFEED INC.. (Attachments: # 1 Civil Cover

Sheet Civil Cover Sheet, # 2 Summons Summons)(Topic,

Matthew) (Entered: 05/02/2019)

Case Assigned to Judge Colleen Kollar-Kotelly. (zef, ) (Entered: 05/03/2019)

2 SUMMONS (7) Issued Electronically as to DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Notice and Consent)(zef, ) (Entered: 05/03/2019)

3 ORDER ESTABLISHING PROCEDURES FOR CASES ASSIGNED TO JUDGE COLLEEN KOLLAR-KOTELLY. Signed by Judge Colleen Kollar-Kotelly on 5/9/19. (DM) (Entered: 05/09/2019)

4 NOTICE of Appearance by Matthew Topic on behalf of BUZZFEED INC., JASON LEOPOLD (Topic, Matthew) (Entered: 05/15/2019)

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5 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by BUZZFEED INC., JASON LEOPOLD (Topic, Matthew) (Entered: 05/15/2019)
6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DOJ DEPUTY ATTORNEY GENERAL served on 5/14/2019 (Topic, Matthew) (Entered: 05/23/2019)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DOJ OFFICE OF ATTORNEY GENERAL served on 5/14/2019 (Topic, Matthew) (Entered: 05/23/2019)
8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DOJ OFFICE OF SPECIAL COUNSEL served on 5/14/2019 (Topic, Matthew) (Entered: 05/23/2019)
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. FEDERAL BUREAU OF INVESTIGATION served on 5/13/2019 (Topic, Matthew) (Entered: 05/23/2019)
10 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 05/14/2019. (Topic, Matthew) (Entered: 05/23/2019)
11 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/14/2019. Answer due for ALL FEDERAL DEFENDANTS by 6/13/2019. (Topic, Matthew) (Entered: 05/23/2019)
12 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF JUSTICE served on 5/14/2019 (Topic, Matthew) (Entered: 05/23/2019)
13 NOTICE of Appearance by Courtney Danielle Enlow on behalf of All Defendants (Enlow, Courtney) (Entered: 06/13/2019)
14 ANSWER to Complaint by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Enlow, Courtney) (Entered: 06/13/2019)

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07/03/2019 07/10/2019
07/15/2019 07/15/2019 07/16/2019 07/22/2019

15 ORDER. The parties shall file the schedule not later than JULY 14, 2019. See Order for further details. Signed by Judge Colleen Kollar-Kotelly on June 14, 2019. (lcckk1) (Entered: 06/14/2019)

Set/Reset Deadlines: Joint Meet & Confer Statement due by 7/14/2019. (dot) (Entered: 06/14/2019)

16 MOTION to Consolidate Cases with CNN v. FBI, No. 19-1626 by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Enlow, Courtney) (Entered: 07/03/2019)

17 Memorandum in opposition to re 16 MOTION to Consolidate Cases with CNN v. FBI, No. 19-1626 filed by BUZZFEED INC., JASON LEOPOLD. (Attachments: # 1 Text of Proposed Order Proposed Order)(Topic, Matthew) (Entered: 07/03/2019)

18 REPLY to opposition to motion re 16 MOTION to Consolidate Cases with CNN v. FBI, No. 19-1626 filed by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (Enlow, Courtney) (Entered: 07/10/2019)

19 Memorandum in opposition to re 16 MOTION to Consolidate Cases with CNN v. FBI, No. 19-1626 filed by CABLE NEWS NETWORK, INC.. (Attachments: # 1 Exhibit A Order in 15-mc1188)(Tobin, Charles) (Entered: 07/15/2019)

Joint STATUS REPORT by DOJ DEPUTY ATTORNEY

20

GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ

OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF

INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (Enlow,

Courtney) (Entered: 07/15/2019)

21 SUPPLEMENTAL MEMORANDUM to re 19 Memorandum in Opposition to Motion to Consolidate filed by CABLE NEWS NETWORK, INC.. (Tobin, Charles) (Entered: 07/16/2019)

22 REPLY to opposition to motion re 16 MOTION to Consolidate Cases with CNN v. FBI, No. 19-1626 filed by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL

08/06/2019 08/09/2019 08/27/2019
09/03/2019
09/04/2019 09/05/2019 09/10/2019

BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (Enlow, Courtney) (Entered: 07/22/2019)
23 NOTICE of Appearance by Merrick Jason Wayne on behalf of BUZZFEED INC., JASON LEOPOLD (Wayne, Merrick) (Entered: 08/06/2019)
24 NOTICE of Appearance by Elizabeth J. Shapiro on behalf of All Defendants (Shapiro, Elizabeth) (Entered: 08/09/2019)
25 Partial MOTION for Judgment on the Pleadings by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Statement of Facts, # 4 Exhibit A Brinkmann Declaration, # 5 Exhibit B - Hardy Declaration, # 6 Exhibit C - emails, # 7 Exhibit D - emails)(Enlow, Courtney) (Entered: 08/27/2019)
MINUTE ORDER: The Court has received Defendants' 16 Motion for Consolidation requesting that this case be consolidated with Cable News Network v. Federal Bureau of Investigation, No. 19cv-1626 (D.D.C.), assigned to Judge Royce C. Lamberth. This case is in the process of being reassigned to Judge Reggie B. Walton, by his consent, as related to his case Electric Privacy Information Center v. United States Department of Justice, No. 19cv-810 (D.D.C.). Accordingly, Defendants' Motion is DENIED as moot. Signed by Judge Colleen Kollar-Kotelly on September 3, 2019. (lcckk1) (Entered: 09/03/2019)
26 Case directly reassigned to Judge Reggie B. Walton as there is an earlier related case. Judge Colleen Kollar-Kotelly is no longer assigned to the case. (rj) (Entered: 09/04/2019)
27 MOTION to Consolidate Cases by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Enlow, Courtney) (Entered: 09/05/2019)
28 Memorandum in opposition to re 27 MOTION to Consolidate Cases filed by CABLE NEWS NETWORK, INC.. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Tobin, Charles) (Entered: 09/10/2019)

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29 Memorandum in opposition to re 25 Partial MOTION for Judgment on the Pleadings filed by BUZZFEED INC., JASON LEOPOLD. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Statement of Facts Plaintiffs' Response to Defendants' Statement of Facts, # 4 Text of Proposed Order)(Topic, Matthew) (Entered: 09/10/2019)

30 ORDER. In accordance with the reasons stated in the attached Order, it is hereby ORDERED that the parties in the abovecaptioned cases shall appear before the Court on October 1, 2019, at 11:00 a.m. to discuss why these cases should not be consolidated or deemed related. Signed by Judge Reggie B. Walton on September 12, 2019. (lcrbw1) (Entered: 09/12/2019)

REPLY to opposition to motion re 27 MOTION to Consolidate

31

Cases filed by DOJ DEPUTY ATTORNEY GENERAL, DOJ

OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF

SPECIAL COUNSEL, FEDERAL BUREAU OF

INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (Enlow,

Courtney) (Entered: 09/17/2019)

32 REPLY to opposition to motion re 25 Partial MOTION for Judgment on the Pleadings filed by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (Enlow, Courtney) (Entered: 09/17/2019)

Minute Entry; for proceedings held before Judge Reggie B. Walton: Status Conference held on 10/1/2019. Production/Scheduling Order to issue via chambers. Status Conference set for 11/13/2019 at 09:30 AM in Courtroom 16 before Judge Reggie B. Walton. (Court Reporter Cathryn Jones) (hs) (Entered: 10/02/2019)

ORDER. See attached Order for details. Signed by Judge Reggie

33

B. Walton on October 3, 2019. (lcrbw1) (Entered: 10/03/2019)

34 RESPONSE re 25 Partial MOTION for Judgment on the Pleadings Plaintiffs' Supplemental Response to Defendants' Motion for Judgment on the Pleadings filed by BUZZFEED INC., JASON LEOPOLD. (Topic, Matthew) (Entered: 11/07/2019)

35 REPLY to opposition to motion re 25 Partial MOTION for Judgment on the Pleadings filed by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF

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11/13/2019
11/13/2019 11/19/2019 11/20/2019

INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit)(Enlow, Courtney) (Entered: 11/08/2019)

36 RESPONSE 33 by CABLE NEWS NETWORK, INC.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Tobin, Charles) Modified on 11/13/2019 (ztd). (Entered: 11/12/2019)

37 STATUS REPORT by BUZZFEED INC., JASON LEOPOLD. (Topic, Matthew) (Entered: 11/12/2019)

RESPONSE to Court Order by DOJ DEPUTY ATTORNEY

38

GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ

OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF

INVESTIGATION, U.S. DEPARTMENT OF JUSTICE re 33

Order on Motion to Consolidate Cases (Attachments: # 1 Declaration, # 2 Declaration)(Enlow, Courtney) Modified on 11/13/2019 text (ztd). (Entered: 11/12/2019)

NOTICE OF ERROR re 38 Notice (Other); emailed to courtney.d.enlow@usdoj.gov, cc'd 11 associated attorneys -- The PDF file you docketed contained errors: 1. DO NOT REFILE. FYI, The event for this type of filing is under Oppositions and Replies then select Response to Order. (ztd, ) (Entered: 11/13/2019)

Minute Entry; for proceedings held before Judge Reggie B. Walton: Status Conference held on 11/13/2019. Written Order to issue via Chambers. Status Conference set for 11/25/2019 at 02:00 PM in Courtroom 16 before Judge Reggie B. Walton. (Court Reporter Cathryn Jones) (hs) (Entered: 11/13/2019)

ORDER. See attached Order for details. Signed by Judge Reggie

39

B. Walton on November 19, 2019. (lcrbw1) (Entered: 11/19/2019)

40 MOTION to Clarify re 39 Order by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE (Enlow, Courtney) (Entered: 11/20/2019)

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MINUTE ORDER. Upon consideration of the 40 Defendant's Motion for Clarification, and for good cause shown, it is hereby ORDERED that this motion is GRANTED. It is further ORDERED that, on or before December 2, 2019, the United States Department of Justice (the "Department") shall produce FBI FD302 forms, including any handwritten notes and attachments to the typewritten narrative, in accordance with the terms of the Court's October 3, 2019 Order, ECF No. 33. It is further ORDERED that, beginning on December 2, 2019, and until otherwise ordered by the Court, the Department shall, on a monthly basis, process at least five hundred (500) pages of only the typewritten narratives of the FBI FD-302 forms (unless fewer than five hundred (500) pages remain, in which case the remaining balance shall be processed). It is further ORDERED that, on January 2, 2020, and on the first day of every month thereafter (or on the next business day if the first is a not a business day), the Department shall produce the nonexempt portions of the typewritten narratives of the FBI FD-302 forms. Signed by Judge Reggie B. Walton on November 20, 2019. (lcrbw1) (Entered: 11/20/2019)

41 RESPONSE TO ORDER re 39 Order by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE (Enlow, Courtney) Modified text on 11/21/2019 (ztd). (Entered: 11/20/2019)

NOTICE OF ERROR re 41 Notice (Other); emailed to courtney.d.enlow@usdoj.gov, cc'd 12 associated attorneys -- The PDF file you docketed contained errors: 1. Incorrect event used, 2. Do Not Refile. FYI: In the future, select Response to Order under Oppositions and Replies. (ztd, ) (Entered: 11/21/2019)

Set/Reset Hearings: Status Conference reset for 11/25/2019 at 02:30 PM in Courtroom 16 before Judge Reggie B. Walton. (hs) (Entered: 11/21/2019)

42 ENTERED IN ERROR. . . . MOTION for Reconsideration of Defendants' request for a stay by BUZZFEED INC., JASON LEOPOLD (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:19-cv-01278-RBW, 1:19-cv-01626-RBW(Topic, Matthew) Modified on 11/22/2019 (ztd). (Entered: 11/22/2019)

MOTION for Preliminary Injunction by BUZZFEED INC.,

43

JASON LEOPOLD (Attachments: # 1 Text of Proposed

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Order)Associated Cases: 1:19-cv-01278-RBW, 1:19-cv-01626RBW(Topic, Matthew) (Entered: 11/22/2019)
44 Motion for Reconsideration Motion to Reconsider Stay by BUZZFEED INC., JASON LEOPOLD. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)Associated Cases: 1:19-cv-01278RBW, 1:19-cv-01626-RBW(Topic, Matthew) Modified on 11/22/2019 (ztd). Modified on 11/26/2019 (ztd). (Entered: 11/22/2019)
45 RESPONSE TO ORDER OF THE COURT re 39
Order Plaintiffs' Response to DOJ's November 20, 2019 Response filed by BUZZFEED INC., CABLE NEWS NETWORK, INC., JASON LEOPOLD. (Tobin, Charles) (Entered: 11/22/2019)
Minute Entry; for proceedings held before Judge Reggie B. Walton: Motion Hearing held on 11/25/2019. The previous production order is VACATED. A written order will issue via Chambers. Status Conference set for 1/8/2020 at 11:30 AM in Courtroom 16 before Judge Reggie B. Walton. (Court Reporter Cathryn Jones) (hs) (Entered: 11/25/2019)
46 TRANSCRIPT OF PROCEEDINGS before Judge Reggie B. Walton held on November 13, 2019; Page Numbers: 1 - 61. Court Reporter/Transcriber Cathryn Jones, Telephone number 202 3543246, Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 12/18/2019. Redacted Transcript Deadline set for 12/28/2019. Release of Transcript Restriction set for

11/28/2019 12/11/2019
12/16/2019 01/07/2020
01/07/2020 01/07/2020
01/08/2020

2/25/2020.(Jones, Cathryn) Modified on 11/27/2019 (ztd). (Entered: 11/27/2019)

47 ORDER. See attached Order for details. Signed by Judge Reggie B. Walton on November 28, 2019. (lcrbw1) (Entered: 11/28/2019)

48 MOTION for Extension of Time to complete processing the FD302s that currently must be produced by January 2, MOTION to Expedite Ruling given the impending January 2 production date by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Enlow, Courtney) (Entered: 12/11/2019)

ORDER. See attached Order for details. Signed by Judge Reggie

49

B. Walton on December 16, 2019. (lcrbw2) (Entered: 12/16/2019)

Joint STATUS REPORT and Response to DOJ's January

50

Productions by BUZZFEED INC., CABLE NEWS NETWORK,

INC., JASON LEOPOLD, CABLE NEWS NETWORK.

(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4

Exhibit D, # 5 Exhibit E)Associated Cases: 1:19-cv-01278RBW, 1:19-cv-01626-RBW(Tobin, Charles) (Entered: 01/07/2020)

STATUS REPORT by DOJ DEPUTY ATTORNEY GENERAL,

51

DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF

SPECIAL COUNSEL, FEDERAL BUREAU OF

INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (Enlow,

Courtney) (Entered: 01/07/2020)

52 RESPONSE TO ORDER OF THE COURT re 49 Order on Motion for Extension of Time to, Order on Motion to Expedite filed by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (ztd); (See docket entry no. 51

to view.) (Entered: 01/08/2020)

CORRECTED*****Minute Entry; for proceedings held before Judge Reggie B. Walton: Status Conference held on 1/8/2020, Status Conference set for 1/30/2020 at 10:00 AM in Courtroom 16 before Judge Reggie B. Walton. Scheduling Order to issue via

01/13/2020 01/17/2020 01/22/2020 01/27/2020 01/28/2020

Chambers. (Court Reporter Cathryn Jones) (hs) Modified on 1/17/2020 to correct the hearing date to 1/30/2020 (hs). (Entered: 01/08/2020)

ORDER. See attached Order for details. Signed by Judge Reggie

53

B. Walton on January 13, 2020. (lcrbw1) (Entered: 01/13/2020)

Set/Reset Hearings: Status Conference set for 1/30/2020 at 10:00 AM in Courtroom 16 before Judge Reggie B. Walton. Associated Cases: 1:19-cv-01278-RBW, 1:19-cv-01626-RBW(hs) (Entered: 01/17/2020)

54 Joint MOTION to Enforce Orders of November 28, 2019 and December 16, 2019 by BUZZFEED INC., CABLE NEWS NETWORK, INC., JASON LEOPOLD (Attachments: # 1 Exhibit A)(Tobin, Charles) (Entered: 01/22/2020)

Joint STATUS REPORT Pursuant to Court's Order of January

55

13, 2020 by CABLE NEWS NETWORK, INC.. (Tobin, Charles)

(Entered: 01/27/2020)

56 TRANSCRIPT OF PROCEEDINGS before Judge Reggie B. Walton held on January 8, 2020; Page Numbers: 1 - 44. Court Reporter/Transcriber Cathryn Jones, Telephone number 202 3543246, Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 2/18/2020. Redacted Transcript Deadline set for 2/28/2020. Release of Transcript Restriction set for 4/27/2020.(Jones, Cathryn) (Entered: 01/28/2020)

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57 RESPONSE re 54 Joint MOTION to Enforce Orders of November 28, 2019 and December 16, 2019 filed by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A)(Enlow, Courtney) (Entered: 01/29/2020)

58 RESPONSE TO ORDER OF THE COURT re 53 Order filed by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A)(Enlow, Courtney) (Entered: 01/29/2020)

Minute Entry; for proceedings held before Judge Reggie B. Walton: Status Conference held on 1/30/2020. Written Order to issue via Chambers. (Court Reporter Cathryn Jones.) Associated Cases: 1:19-cv-01278-RBW, 1:19-cv-01626-RBW(hs) (Entered: 01/30/2020)

59 MOTION for Partial Summary Judgment by BUZZFEED INC., CABLE NEWS NETWORK, INC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Tobin, Charles) (Entered: 02/03/2020)

ORDER. See attached Order for details. Signed by Judge Reggie

60

B. Walton on February 5, 2020. (lcrbw1) (Entered: 02/05/2020)

61 Joint STATUS REPORT by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (Enlow, Courtney) (Entered: 02/24/2020)

62 Memorandum in opposition to re 59 MOTION for Partial Summary Judgment filed by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order, # 2 Index of Exhibits, # 3 Declaration Declaration of Bradley Weinsheimer and supporting exhibits, # 4 Weinsheimer declaration supporting

02/24/2020 02/25/2020
02/25/2020 03/06/2020

exhibits, # 5 Weinsheimer declaration supporting exhibits, # 6 Weinsheimer declaration supporting exhibits, # 7 Weinsheimer
declaration supporting exhibits, # 8 Declaration of Vanessa Brinkmann and Vaughn Index, # 9 Declaration of David Hardy and supporting exhibits)(Enlow, Courtney) (Entered: 02/24/2020)
63 Partial MOTION for Summary Judgment by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order, # 2 Index of Exhibits, # 3 Declaration of Bradley Weinsheimer and supporting exhibits, # 4 Weinsheimer declaration supporting exhibits, # 5 Weinsheimer declaration supporting exhibits, # 6 Weinsheimer declaration supporting exhibits, # 7 Weinsheimer declaration supporting exhibits, # 8 Declaration of Vanessa Brinkmann and Vaughn Index, # 9 Declaration of David Hardy and supporting exhibits)(Enlow, Courtney) (Entered: 02/24/2020)
MINUTE ORDER. Upon consideration of the 61 Joint Status Report, and for good cause shown, it is hereby ORDERED that Jason Leopold and Buzzfeed, Inc. (collectively, the "Leopold plaintiffs") and the United States Department of Justice (the "Department") shall submit a joint status report on or before March 10, 2020, regarding how they wish to proceed with respect to the Leopold plaintiffs' request for all documents and records collected, maintained and stored by the Office of Special Counsel Mueller since May 17, 2017, during the Office's investigation. It is further ORDERED that the Leopold plaintiffs and the Department shall appear before the Court for a status conference on March 13, 2020, at 11:00 a.m. to discuss the Department's pending motion for partial judgment on the pleadings. Signed by Judge Reggie B. Walton on February 25, 2020. (lcrbw1) (Entered: 02/25/2020)
Joint status report due on or before March 10, 2020. Status Conference set for 3/13/2020 at 11:00 AM in Courtroom 16 before Judge Reggie B. Walton. (ztl) (Entered: 02/25/2020)
64 REPLY to opposition to motion re 59 MOTION for Partial Summary Judgment , 63 Partial MOTION for Summary Judgment filed by BUZZFEED INC., CABLE NEWS NETWORK, INC., JASON LEOPOLD. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Tobin, Charles) (Entered: 03/06/2020)

03/06/2020 03/09/2020 03/09/2020 03/10/2020 03/10/2020
03/11/2020 03/18/2020

65 Memorandum in opposition to re 63 Partial MOTION for Summary Judgment filed by BUZZFEED INC., CABLE NEWS NETWORK, INC., JASON LEOPOLD. (See Docket Entry 64 to view document) (ztth) (Entered: 03/09/2020)

66 NOTICE OF SUPPLEMENTAL AUTHORITY by BUZZFEED INC., CABLE NEWS NETWORK, INC., JASON LEOPOLD (Attachments: # 1 Exhibit A decision in The Protect Democracy Project v. NSA)(Tobin, Charles) (Entered: 03/09/2020)

67 Joint STATUS REPORT by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (Enlow, Courtney) (Entered: 03/09/2020)

68 Joint STATUS REPORT by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (Enlow, Courtney) (Entered: 03/10/2020)

MINUTE ORDER. Upon consideration of the parties' 68 Joint Status Report, and for good cause shown, it is hereby ORDERED that the 25 Defendant's Motion for Partial Judgment on the Pleadings is DENIED WITHOUT PREJUDICE. It is further ORDERED that the motion hearing currently scheduled for March 13, 2020, is VACATED. It is further ORDERED that, on or before April 10, 2020, the parties shall submit a joint status report regarding whether the United States Department of Justice's Office of Information Policy has completed the agreed-upon e-mail searches. Signed by Judge Reggie B. Walton on March 10, 2020. (lcrbw1) (Entered: 03/10/2020)

Set/Reset Deadlines: Joint Status Report due by 4/10/2020 (hs) (Entered: 03/11/2020)

Unopposed MOTION for Extension of Time to File

69

Response/Reply as to 63 Partial MOTION for Summary

Judgment by DOJ DEPUTY ATTORNEY GENERAL, DOJ

OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF

SPECIAL COUNSEL, FEDERAL BUREAU OF

INVESTIGATION, U.S. DEPARTMENT OF JUSTICE

(Attachments: # 1 Text of Proposed Order)(Enlow, Courtney)

(Entered: 03/18/2020)

03/18/2020 03/18/2020
03/19/2020 03/19/2020
03/20/2020

70 NOTICE OF SUPPLEMENTAL AUTHORITY by BUZZFEED INC., CABLE NEWS NETWORK, INC., JASON LEOPOLD (Attachments: # 1 Exhibit 1)(Tobin, Charles) (Entered: 03/18/2020)

MINUTE ORDER. Upon consideration of the 69 Defendant's Unopposed Motion for an Extension of the Deadlines to File its Reply Brief In Light of the COVID-19 Pandemic's Effect on Federal Government Operations, and for good cause shown, it is hereby ORDERED that this motion is GRANTED. It is further ORDERED that the United States Department of Justice shall file its reply in support of its motion for partial summary judgment on or before March 27, 2020. It is further ORDERED that the motion hearing currently scheduled for April 2, 2020, is CONTINUED to May 1, 2020, at 2:00 p.m. Signed by Judge Reggie B. Walton on March 18, 2020. (lcrbw1) (Entered: 03/18/2020)

Set/Reset Deadlines/Hearings: Defendants Reply in support of its Motion for Partial Summary Judgment due by 3/27/2020. Motion Hearing reset for 5/1/2020 at 02:00 PM in Courtroom 16 before Judge Reggie B. Walton. (hs) (Entered: 03/19/2020)

71 MOTION to Stay THE PROCESSING, PRODUCTION, AND REPORTING DEADLINES IN LIGHT OF THE COVID-19 PANDEMICS EFFECT ON FEDERAL GOVERNMENT OPERATIONS, MOTION for Extension of Time to COMPLY WITH THE PROCESSING, PRODUCTION, AND REPORTING DEADLINES IN LIGHT OF THE COVID-19 PANDEMICS EFFECT ON FEDERAL GOVERNMENT OPERATIONS by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of

Proposed Order, # 2 03/19/2020)

Declaration)(Enlow, Courtney) (Entered:

MINUTE ORDER. Upon consideration of the 71 Defendant's Motion for a Stay and Extension of the Processing, Production, and Reporting Deadlines in Light of the COVID-19 Pandemic's Effect on Federal Government Operations, it is hereby ORDERED that the motion is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED to the extent that it seeks to vacate all pending deadlines in this case, with the exception of the defendant's deadline to file its reply in support of its motion for

03/20/2020 03/27/2020
04/13/2020 04/13/2020 04/15/2020
04/15/2020

partial summary judgment, which remains in effect. The motion is DENIED in all other respects. It is further ORDERED that all deadlines in this case, with the exception of the defendant's deadline to file its reply in support of its motion for partial summary judgment, are VACATED pending further order of the Court. It is further ORDERED that, on or before April 13, 2020, the parties shall confer by telephone and file a joint status report proposing a schedule governing further proceedings in this case. Signed by Judge Reggie B. Walton on March 20, 2020. (lcrbw1) (Entered: 03/20/2020)

Set/Reset Deadlines: Joint Status Report due by 4/13/2020 (hs) (Entered: 03/20/2020)

72 REPLY to opposition to motion re 63 Partial MOTION for Summary Judgment filed by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration of Vanessa Brinkmann)(Enlow, Courtney) (Entered: 03/27/2020)

Joint STATUS REPORT by DOJ DEPUTY ATTORNEY

73

GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ

OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF

INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (Enlow,

Courtney) (Entered: 04/13/2020)

74 AFFIDAVIT re 73 Status Report by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (Enlow, Courtney) (Entered: 04/13/2020)

MINUTE ORDER. Upon consideration of the parties' 73

Joint Status Report, and for good cause shown, it is hereby ORDERED that, on or before April 27, 2020, the parties shall confer by telephone and file a joint status report proposing a schedule governing further proceedings in this case. Signed by Judge Reggie B. Walton on April 15, 2020. (lcrbw1) (Entered: 04/15/2020)

Set/Reset Deadlines: Joint Status Report due by 4/27/2020 (hs) (Entered: 04/15/2020)

04/17/2020 04/22/2020 04/23/2020
04/24/2020 04/27/2020 04/30/2020

75 NOTICE OF SUPPLEMENTAL AUTHORITY by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 D.C. Circuit opinion in Judicial Watch v. DOJ regarding FD-302s as attorney work product)(Enlow, Courtney) (Entered: 04/17/2020)

76 RESPONSE re (75 in 1:19-cv-01278-RBW) NOTICE OF SUPPLEMENTAL AUTHORITY, filed by BUZZFEED, INC., CABLE NEWS NETWORK, INC., JASON LEOPOLD, CABLE NEWS NETWORK. (Attachments: # 1 Exhibit 1)Associated Cases: 1:19-cv-01278-RBW, 1:19-cv-01626-RBW(Tobin, Charles) (Entered: 04/22/2020)

MINUTE ORDER. In light of Chief Judge Howell's April 2, 2020 Order, In re: Extension of Postponed Court Proceedings in Standing Order 20-9 and Limiting Court Operations in Exigent Circumstances Created by the COVID-19 Pandemic, Standing Order No. 20-19 (BAH), it is hereby ORDERED that the motions hearing currently scheduled for May 1, 2020, is CONTINUED to June 18, 2020, at 12:30 p.m. It is further ORDERED that the motions hearing currently scheduled for June 18, 2020, is CONVERTED into a status conference, which will serve as a target date for the resolution of the parties' summary judgment motions. Signed by Judge Reggie B. Walton on April 23, 2020. (lcrbw1) (Entered: 04/23/2020)

Set/Reset Hearings: Motion Hearing converted to a Status Conference set for 6/18/2020 at 12:30 PM in Courtroom 16 before Judge Reggie B. Walton. (hs) (Entered: 04/24/2020)

Joint STATUS REPORT by BUZZFEED, INC., CABLE NEWS

77

NETWORK, INC., JASON LEOPOLD. (Tobin, Charles)

(Entered: 04/27/2020)

MINUTE ORDER. Upon consideration of the parties' 77

Joint Status Report, it is hereby ORDERED that, on or before May 30, 2020, the United States Department of Justice shall process and produce at least three hundred (300) pages of the typewritten narratives of the FD-302 forms created by the Federal Bureau of Investigation in relation to Special Counsel Mueller's investigation into Russian interference in the 2016 United States presidential election. It is further ORDERED that, on or before May 27, 2020, the parties shall confer by telephone and file a joint

05/01/2020 05/18/2020 05/27/2020 06/01/2020
06/01/2020 06/08/2020
06/09/2020 06/09/2020 06/10/2020 07/15/2020

status report proposing a schedule governing further proceedings in this case. Signed by Judge Reggie B. Walton on April 30, 2020. (lcrbw1) (Entered: 04/30/2020)

Set/Reset Deadlines: Joint Status Report due by 5/27/2020 (hs) (Entered: 05/01/2020)

78 NOTICE OF SUPPLEMENTAL AUTHORITY by BUZZFEED, INC., CABLE NEWS NETWORK, INC., JASON LEOPOLD (Attachments: # 1 Exhibit 1)(Tobin, Charles) (Entered: 05/18/2020)

Joint STATUS REPORT by BUZZFEED, INC., CABLE NEWS

79

NETWORK, INC., JASON LEOPOLD. (Tobin, Charles)

(Entered: 05/27/2020)

MINUTE ORDER. Upon consideration of the parties' 79

Joint Status Report, it is hereby ORDERED that, on June 8, 2020, at 2:00 p.m., the parties shall appear before the Court for a status conference via teleconference by calling 1-877-873-8017 and entering the Court's access code (8583213) followed by the pound key (#). Signed by Judge Reggie B. Walton on June 1, 2020. (lcrbw1) (Entered: 06/01/2020)

Set/Reset Hearings: Status Conference reset for 6/8/2020 at 02:00 PM before Judge Reggie B. Walton. (hs) (Entered: 06/01/2020)

Minute Entry; for proceedings held before Judge Reggie B. Walton: Status Conference held on 6/8/2020. Written order to issue from Chambers. (Court Reporter Cathryn Jones) Associated Cases: 1:19-cv-01278-RBW, 1:19-cv-01626-RBW(hs) (Entered: 06/08/2020)

Set/Reset Hearings: Motion Hearing reset for 7/23/2020 at 10:00 AM before Judge Reggie B. Walton. Associated Cases: 1:19-cv01278-RBW, 1:19-cv-01626-RBW(hs) (Entered: 06/09/2020)

ORDER. See attached Order for details. Signed by Judge Reggie

80

B. Walton on June 9, 2020. (lcrbw1) (Entered: 06/09/2020)

Set/Reset Deadlines: Joint Status Report due by 9/11/2020 Associated Cases: 1:19-cv-01278-RBW, 1:19-cv-01626-RBW(hs) (Entered: 06/10/2020)

MINUTE ORDER. In light of Chief Judge Howell's July 9, 2020 Order, In re: Third Further Extension of Postponed Court

07/23/2020 08/19/2020
81 08/21/2020
08/21/2020

Proceedings Due to Ongoing Exigent Circumstances Caused by COVID-19 Pandemic, Standing Order No. 20-62 (BAH), it is hereby ORDERED that the parties shall appear for the motions hearing currently scheduled for July 23, 2020, at 10:00 a.m., via teleconference by calling 1-877-873-8017 and entering the Court's access code (8583213) followed by the pound key (#). Signed by Judge Reggie B. Walton on July 15, 2020. (lcrbw1) (Entered: 07/15/2020)
Minute Entry; for proceedings held before Judge Reggie B. Walton: Motion Hearing/Oral Argument held on 7/23/2020 re (63) in 1:19-cv-01278-RBW) Partial MOTION for Summary Judgment. (Court Reporter Cathryn Jones.) Associated Cases: 1:19-cv-01278-RBW, 1:19-cv-01626-RBW(hs) (Entered: 07/23/2020)
MOTION to Modify Orders of February 5, 2020 and June 9, 2020 by BUZZFEED, INC., CABLE NEWS NETWORK, INC., JASON LEOPOLD (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Tobin, Charles) (Entered: 08/19/2020)
MINUTE ORDER. To ensure the expeditious resolution of the
plaintiffs' 81 Motion to Modify Orders of February 5, 2020 and June 9, 2020, it is hereby ORDERED that, on or before August 28, 2020, the United States Department of Justice shall file its opposition to the plaintiffs' motion. It is further ORDERED that, on or before August 31, 2020, the plaintiffs shall file a reply in support of their motion. It is further ORDERED that, on September 4, 2020, at 11:00 a.m., the parties shall appear before the Court for a motions hearing via teleconference by calling 1877-873-8017 and entering the Court's access code (8583213) followed by the pound key (#). The parties shall be prepared to
address not only the plaintiffs' 81 Motion to Modify Orders of February 5, 2020 and June 9, 2020 but also the 54 Plaintiffs' Motion to Enforce Orders of November 28, 2019 and December 16, 2019. Signed by Judge Reggie B. Walton on August 21, 2020. (lcrbw1) (Entered: 08/21/2020)
Set/Reset Deadlines/Hearings: Defendant's Response due by 8/28/2020. Reply in support of its Motion due by 8/31/2020. Motion Hearing set for 9/4/2020 at 11:00 AM by Telephonic/VTC before Judge Reggie B. Walton. (hs) (Entered: 08/21/2020)

08/28/2020 08/31/2020 09/01/2020
09/01/2020
09/03/2020 09/03/2020

82 RESPONSE re 81 MOTION to Modify Orders of February 5, 2020 and June 9, 2020 filed by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration of Michael G. Seidel)(Enlow, Courtney) (Entered: 08/28/2020)

83 REPLY to opposition to motion re 81 MOTION to Modify Orders of February 5, 2020 and June 9, 2020 filed by BUZZFEED, INC., CABLE NEWS NETWORK, INC., JASON LEOPOLD. (Tobin, Charles) (Entered: 08/31/2020)

84 WITHDRAWN PURSUANT TO DE# 85 WITHDRAWAL OF MOTION.....Emergency MOTION for Extension of Time to Produce Records to Plaintiffs, MOTION to Expedite Ruling on this Consent Motion for a One-Day Extension of Time by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Enlow, Courtney) Modified on 9/2/2020 (zjf). (Entered: 09/01/2020)

WITHDRAWAL of Motion by DOJ DEPUTY ATTORNEY

85

GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ

OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF

INVESTIGATION, U.S. DEPARTMENT OF JUSTICE

re 84 Emergency MOTION for Extension of Time to Produce

Records to Plaintiffs MOTION to Expedite Ruling on this Consent

Motion for a One-Day Extension of Time filed by U.S.

DEPARTMENT OF JUSTICE, DOJ OFFICE OF SPECIAL

COUNSEL, DOJ DEPUTY ATTORNEY GENERAL, DOJ

OFFICE OF ATTORNEY GENERAL, FEDERAL BUREAU OF

INVESTIGATION . (Enlow, Courtney) (Entered: 09/01/2020)

MEMORANDUM OPINION. Signed by Judge Reggie B. Walton

86

on September 3, 2020. (lcrbw1) (Entered: 09/03/2020)

87 ORDER. In accordance with the Memorandum Opinion issued on this same date, it is hereby ORDERED that the 59 Memorandum in Support of Plaintiffs' Motion for Partial Summary Judgment is DENIED. It is further ORDERED that the 63 Department of Justice's Motion for Partial Summary Judgment in Leopold v.

09/04/2020
09/04/2020 09/08/2020 09/08/2020 09/11/2020
09/11/2020 09/14/2020

Department of Justice and Cable News Network v. Federal Bureau of Investigation is GRANTED. Signed by Judge Reggie B. Walton on September 3, 2020. (lcrbw1) (Entered: 09/03/2020)

Minute Entry; for proceedings held before Judge Reggie B. Walton: Motion Hearing held on 9/4/2020 re (81 in 1:19-cv01278-RBW) MOTION to Modify Orders of February 5, 2020 and June 9, 2020 filed by BUZZFEED, INC., JASON LEOPOLD, CABLE NEWS NETWORK, INC. A written order will issue from Chambers. Tentative Ex-Parte Hearing set for 10/7/2020 at 10:00 AM in a courtroom to be determined at a later date before Judge Reggie B. Walton. (Court Reporter Cathryn Jones) Associated Cases: 1:19-cv-01278-RBW, 1:19-cv-01626-RBW(hs) (Entered: 09/04/2020)

88 ORDER. See attached Order for details. Signed by Judge Reggie B. Walton on September 4, 2020. (lcrbw1) (Entered: 09/04/2020)

89 ORDER. See attached Order for details. Signed by Judge Reggie B. Walton on September 8, 2020. (lcrbw1) (Entered: 09/08/2020)

90 AMENDED ORDER. See attached Amended Order for details. Signed by Judge Reggie B. Walton on September 8, 2020. (lcrbw1) (Entered: 09/08/2020)

MOTION to Clarify re 90 Order , MOTION for

91

Reconsideration and Request for Expedited Ruling by DOJ

DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF

ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL

COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S.

DEPARTMENT OF JUSTICE (Attachments: # 1 Declaration of

Michael G. Seidel, # 2 Text of Proposed Order)(Enlow, Courtney)

(Entered: 09/11/2020)

Joint STATUS REPORT by DOJ DEPUTY ATTORNEY

92

GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ

OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF

INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (Enlow,

Courtney) (Entered: 09/11/2020)

MINUTE ORDER. To ensure the expeditious resolution of the 91

Defendant's Motion for Clarification and Partial Reconsideration of the Court's Amended Order and Request for Expedited Ruling, it is hereby ORDERED that, on or before September 18, 2020, the plaintiffs shall file a response to the defendant's motion. It is further ORDERED that, on or before

09/14/2020 09/18/2020 09/23/2020
10/02/2020 10/05/2020 10/05/2020

September 23, 2020, the defendant shall file a reply in support of its motion. It is further ORDERED that, on October 2, 2020, at 11:30 a.m., the parties shall appear before the Court for a motion hearing via teleconference by calling 1-877-873-8017 and entering the Court's access code (8583213) followed by the pound key (#). Signed by Judge Reggie B. Walton on September 14, 2020. (lcrbw1) (Entered: 09/14/2020)
Set/Reset Deadlines/Hearings: Plaintiff's Response due by 9/18/2020, Defendant's Reply in support its motion due by 9/23/2020. Motion Hearing set for 10/2/2020 at 11:30 AM by Telephonic/VTC before Judge Reggie B. Walton. (hs) (Entered: 09/14/2020)
93 Memorandum in opposition to re 91 MOTION to Clarify re 90 Order MOTION for Reconsideration and Request for Expedited Ruling filed by BUZZFEED, INC., CABLE NEWS NETWORK, INC., JASON LEOPOLD. (Tobin, Charles) (Entered: 09/18/2020)
94 REPLY to opposition to motion re 91 MOTION to Clarify re 90 Order MOTION for Reconsideration and Request for Expedited Ruling filed by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE. (Enlow, Courtney) (Entered: 09/23/2020)
Minute Entry; for proceedings held before Judge Reggie B. Walton: Motion Hearing held on 10/2/2020. Written Order to issue from Chambers. (Court Reporter Janice Dickman) Associated Cases: 1:19-cv-01278-RBW, 1:19-cv-01626-RBW(hs) (Entered: 10/02/2020)
95 NOTICE in Response to Court Order Regarding October 7 Hearing by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE re Motion Hearing, 90 Order (Enlow, Courtney) (Entered: 10/05/2020)
96 ORDER. See attached Order for details. Signed by Judge Reggie B. Walton on October 5, 2020. (lcrbw1) (Entered: 10/05/2020)

10/05/2020 97

AMENDED ORDER. See attached Amended Order for details. Signed by Judge Reggie B. Walton on October 5, 2020. (lcrbw1) (Entered: 10/05/2020)

10/06/2020

Set/Reset Hearings: Ex Parte Status Conference set for 10/7/2020 at 09:00 AM in Courtroom 16 before Judge Reggie B. Walton. (hs) (Entered: 10/06/2020)

10/06/2020

98 REPLY re 95 Notice (Other), Defendant's Response to Court Order filed by BUZZFEED, INC., CABLE NEWS NETWORK, INC., JASON LEOPOLD. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Tobin, Charles) (Entered: 10/06/2020)

10/06/2020

99 NOTICE (Amended) in Response to Court's Order by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S.

DEPARTMENT OF JUSTICE re 97 Order, 95 Notice (Other), (Enlow, Courtney) (Entered: 10/06/2020)

10/07/2020

100 ORDER. In accordance with the attached Order, it is hereby ORDERED that the United States Department of Justice shall file under seal a list of the typewritten narratives of the FD-302 forms that it identified in its processing of the documents produced on October 1, 2020, for which it has issued consultation or coordination requests. Signed by Judge Reggie B. Walton on October 7, 2020. (lcrbw1) (Entered: 10/07/2020)

10/07/2020

Minute Entry; for proceedings held before Judge Reggie B. Walton: Ex Parte Status Conference held on 10/7/2020. (Court Reporter Cathryn Jones.) Associated Cases: 1:19-cv-01278-RBW, 1:19-cv-01626-RBW(hs) (Entered: 10/07/2020)

10/07/2020

101 SEALED DOCUMENT filed by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE re 100 Order, Status Conference, Set Deadlines (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit List of FD-302s sent for consultation in October)(Enlow, Courtney) (Entered: 10/07/2020)

10/08/2020 102

Emergency MOTION for Order by BUZZFEED, INC., CABLE NEWS NETWORK, INC., JASON LEOPOLD (Attachments: # 1

Exhibit A, # 2 Text of Proposed Order)(Topic, Matthew) (Entered: 10/08/2020)

10/08/2020 103

ORDER. See attached Order for details. Signed by Judge Reggie B. Walton on October 8, 2020. (lcrbw1) (Entered: 10/08/2020)

10/09/2020 104

ORDER. In accordance with the attached Order, it is hereby ORDERED that, on or before October 30, 2020, the United States Department of Justice shall make a good faith effort to complete its review of and produce to the plaintiffs as many non-exempt portions as possible of the typewritten narratives of the FD-302 forms that it identified on the list filed under seal to the Court on October 7, 2020. It is further ORDERED that, on November 4, 2020, at 2:00 p.m., the parties shall appear before the Court for a status conference via teleconference by calling 1-877-873-8017 and entering the Court's access code (8583213) followed by the pound key (#). Signed by Judge Reggie B. Walton on October 9, 2020. (lcrbw1) (Entered: 10/09/2020)

10/09/2020

Set/Reset Deadlines/Hearings: Status Conference set for 11/4/2020 at 02:00 PM by Telephonic/VTC before Judge Reggie B. Walton. Associated Cases: 1:19-cv-01278-RBW, 1:19-cv-01626-RBW(hs) (Entered: 10/09/2020)

10/09/2020

105 Emergency MOTION for one week for an agency to complete two consults with no change in October 30 production date to plaintiffs

re 97 Order by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE

(Attachments: # 1 Text of Proposed Order)(Enlow, Courtney) (Entered: 10/09/2020)

10/10/2020 106

ORDER. See attached Order for details. Signed by Judge Reggie B. Walton on October 10, 2020. (lcrbw1) (Entered: 10/10/2020)

10/13/2020 107

Memorandum in opposition to re 102 Emergency MOTION for Order filed by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE.

(Attachments: # 1 Declaration of G. Bradley

Weinsheimer)(Enlow, Courtney) Modified docket event/text on 10/14/2020 (eg). (Entered: 10/13/2020)

10/13/2020

108 Consent MOTION for Extension of Time to Provide Final Responses on Consultation/Coordination Requests (nunc pro tunc motion for one-day extension for one Federal agency) by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Enlow, Courtney) (Entered: 10/13/2020)

10/14/2020 109

REPLY to opposition to motion re 102 Emergency MOTION for Order filed by BUZZFEED, INC., CABLE NEWS NETWORK, INC., JASON LEOPOLD. (Tobin, Charles) (Entered: 10/14/2020)

10/14/2020 110

ORDER. See attached Order for details. Signed by Judge Reggie B. Walton on October 14, 2020. (lcrbw1) (Entered: 10/14/2020)

10/16/2020

MINUTE ORDER. It is hereby ORDERED that the parties shall appear for the motion hearing currently scheduled for October 16, 2020, at 11:00 a.m., via teleconference by calling 1-877-873-8017 and entering the Court's access code (8583213) followed by the pound key (#). The Clerk of the Court will provide counsel with a security code required to access the teleconference. Members of the public are advised to dial in by calling 1-888-557-8511 and entering the public access code: (4140864). Signed by Judge Reggie B. Walton on October 16, 2020. (lcrbw1) (Entered: 10/16/2020)

10/16/2020

Minute Entry; for proceedings held before Judge Reggie B. Walton: Motion Hearing held on 10/16/2020 re (132 in 1:19-cv00810-RBW) Emergency MOTION for Order filed by BUZZFEED, INC., JASON LEOPOLD, (102 in 1:19-cv-01278RBW) Emergency MOTION for Order filed by BUZZFEED, INC., JASON LEOPOLD, CABLE NEWS NETWORK, INC. Motion Hearing continued for 10/21/2020 at 11:30 AM by Telephonic/VTC before Judge Reggie B. Walton. (Court Reporter Cathryn Jones) (hs) (Entered: 10/16/2020)

10/16/2020 111

ORDER. See attached Order for details. Signed by Judge Reggie B. Walton on October 16, 2020. (lcrbw1) (Entered: 10/16/2020)

10/20/2020

112 NOTICE of Compliance with Court Order by DOJ DEPUTY ATTORNEY GENERAL, DOJ OFFICE OF ATTORNEY

GENERAL, DOJ OFFICE OF SPECIAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF

10/20/2020 113

JUSTICE re 111 Order (Attachments: # 1 Declaration)(Enlow, Courtney) (Entered: 10/20/2020)
RESPONSE re 112 Notice (Other), filed by BUZZFEED, INC., CABLE NEWS NETWORK, INC., JASON LEOPOLD. (Tobin, Charles) (Entered: 10/20/2020)

10/21/2020

Minute Entry; for proceedings held before Judge Reggie B. Walton: Motion Hearing held on 10/21/2020. Plaintiff's 132 in 1:19-cv-00810-RBW Emergency MOTION for Order filed by BUZZFEED, INC., JASON LEOPOLD, and 102 in 1:19-cv01278-RBW Emergency MOTION for Order filed by BUZZFEED, INC., JASON LEOPOLD, CABLE NEWS NETWORK, INC.; heard and denied. A written order will issue from Chambers. (Court Reporter Cathryn Jones) (hs) (Entered: 10/21/2020)

10/22/2020 114

ORDER. See attached Order for details. Signed by Judge Reggie B. Walton on October 22, 2020. (lcrbw1) (Entered: 10/22/2020)

10/26/2020

115 TRANSCRIPT OF PROCEEDINGS before Judge Reggie B. Walton held on October 21, 2020; Page Numbers: 1 - 17. Court Reporter/Transcriber Cathryn Jones, Telephone number 202 3543246, Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, th e transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 11/16/2020. Redacted Transcript Deadline set for 11/26/2020. Release of Transcript Restriction set for 1/24/2021.(Jones, Cathryn) (Entered: 10/26/2020)

10/29/2020 116

ORDER. In accordance with the attached Order, it is hereby ORDERED that, on or before October 29, 2020, the United States Department of Justice (the "Department") shall order a transcript of the ex parte hearing held on October 7, 2020, so that the court reporter can expeditiously prepare a transcript of the hearing for the Department's and the Court's review prior to the production of a redacted copy of the transcript to the plaintiffs before November 3, 2020. It is further ORDERED that the status conference currently scheduled for November 4, 2020, is VACATED. It is further ORDERED that, on or before December 1, 2020, the Department shall produce to the plaintiffs all remaining nonexempt portions of the typewritten narratives of the FD-302 forms that it identified on the list filed under seal to the Court on October 7, 2020. It is further ORDERED that, on December 4, 2020, at 9:30 a.m., the parties shall appear before the Court for a status conference via teleconference by calling 1-877-873-8017 and entering the Court's access code (8583213) followed by the pound key (#). Signed by Judge Reggie B. Walton on October 29, 2020. (lcrbw1) (Entered: 10/29/2020)

10/29/2020

Minute Entry; for proceedings held before Judge Reggie B. Walton: Status Conference held on 10/29/2020. Status Hearing set for 11/4/2020 is VACATED. Status Conference set for 12/4/2020 at 09:30 AM by Telephonic/VTC before Judge Reggie B. Walton. (Court Reporter Cathryn Jones) (hs) (Entered: 10/29/2020)

10/30/2020

117 TRANSCRIPT OF PROCEEDINGS before Judge Reggie B. Walton held on October 7, 2020; Page Numbers: 1 - 4. Court Reporter/Transcriber Cathryn Jones, Telephone number 202 3543246, Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 11/20/2020. Redacted Transcript Deadline set for 11/30/2020. Release of Transcript Restriction set for 1/28/2021.(Jones, Cathryn) (Entered: 10/30/2020)

12/04/2020

Minute Entry; for proceedings held before Judge Reggie B. Walton: Status Conference held on 12/4/2020. A written order will issue via Chambers. (Court Reporter Cathryn Jones) Associated Cases: 1:19-cv-01278-RBW, 1:19-cv-01626-RBW(hs) (Entered: 12/04/2020)

12/05/2020

118 TRANSCRIPT OF PROCEEDINGS before Judge Reggie B. Walton held on December 4, 2020; Page Numbers: 1 - 17. Court Reporter/Transcriber Cathryn Jones, Telephone number 202 3543246, Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, th e transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 12/26/2020. Redacted Transcript Deadline set for 1/5/2021. Release of Transcript Restriction set for 3/5/2021.(Jones, Cathryn) (Entered: 12/05/2020)

12/07/2020 119

ORDER. In accordance with the attached Order, it is hereby ORDERED that, on or before January 15, 2021, in light of the grant of a full and unconditional pardon to General Michael T. Flynn by the President and General Flynn's acceptance of the pardon, to the extent that any typewritten narratives of the FD-302 forms created by the Federal Bureau of Investigation ("FBI") in conjunction with Special Counsel Robert Mueller's investigation into Russian interference in the 2016 United States presidential election concern General Flynn, the United States Department of Justice (the "Department") shall (1) re-process the typewritten narratives and (2) produce to the plaintiffs all non-exempt portions of the re-processed typewritten narratives. It is further ORDERED

that, until otherwise ordered by the Court, the Department shall, on a monthly basis, process at least five hundred (500) pages of the remaining records responsive to the plaintiffs' requests for the FD302 forms created by the FBI in conjunction with Special Counsel Mueller's investigation (unless fewer than five hundred (500) pages remain, in which case the remaining balance shall be processed) and produce to the plaintiffs, on or before April 1, 2021, and thereafter on the first day of every month (or on the next business day if the first is not a business day or is a holiday) until production has been completed, the non-exempt portions of these records. Signed by Judge Reggie B. Walton on December 7, 2020. (lcrbw1) (Entered: 12/07/2020)

 
 U.S. Department of Justice

Federal Bureau of Investigation Washington, D.C. 20535

January 15, 2021

MR. JASON LEOPOLD BUZZFEED NEWS 7TH FLOOR 1630 CONNECTICUT AVENUE NW WASHINGTON, DC 20009

Dear Mr. Leopold:

FOIPA Request No.: 1432673-000 Civil Action No.: 19-cv-01278 Subject: All 302’s of individuals who were questioned/interviewed by FBI Agents working for the Office of Special Counsel Robert Mueller

The enclosed documents were reviewed under the Freedom of Information/Privacy Acts (FOIPA), Title 5, United States Code, Section 552/552a. Below you will find checked boxes under applicable statutes for the exemptions asserted to protect information exempt from disclosure. The appropriate exemptions are noted on the processed pages next to redacted information. In addition, a deleted page information sheet was inserted to indicate where pages were withheld entirely pursuant to applicable exemptions. An Explanation of Exemptions is enclosed to further explain justification for withheld information.

(b)(1) (b)(2) (b)(3)

Section 552

50 U.S.C § 3024(i)(1) Federal Rules of Criminal Procedure 6 (e)

10 U.S.C § 424 (b)(4)

(b)(5) (b)(6)

(b)(7)(A) (b)(7)(B) (b)(7)(C) (b)(7)(D) (b)(7)(E)
(b)(7)(F) (b)(8)
(b)(9)

Section 552a (d)(5) (j)(2) (k)(1) (k)(2) (k)(3)
(k)(4) (k)(5)
(k)(6) (k)(7)

122 pages were reviewed and 122 pages are being released.

The appropriate redactions were made by the Department of Justice/Office of Information Policy (DOJ/OIP) and Defense Intelligence Agency (DIA).
Please refer to the enclosed FBI FOIPA Addendum for additional standard responses applicable to your request. “Part 1” of the Addendum includes standard responses that apply to all requests. “Part 2” includes additional standard responses that apply to all requests for records about yourself or any third party individuals. “Part 3” includes general information about FBI records that you may find useful. Also enclosed is our Explanation of Exemptions.

Although your request is in litigation, we are required by law to provide you the following information:
For questions regarding our determinations, visit the www.fbi.gov/foia website under “Contact Us.” The FOIPA Request Number listed above has been assigned to your request. Please use this number in all correspondence concerning your request.
If you are not satisfied with the Federal Bureau of Investigation’s determination in response to this request, you may administratively appeal by writing to the Director, Office of Information Policy (OIP), United States Department of Justice, 441 G Street, NW, 6th Floor, Washington, D.C. 20530, or you may submit an appeal through OIP's FOIA STAR portal by creating an account following the instructions on OIP’s website: https://www.justice.gov/oip/submit-and-track-request-or-appeal. Your appeal must be postmarked or electronically transmitted within ninety (90) days of the date of my response to your request. If you submit your appeal by mail, both the letter and the envelope should be clearly marked "Freedom of Information Act Appeal." Please cite the FOIPA Request Number assigned to your request so it may be easily identified.
You may seek dispute resolution services by contacting the Office of Government Information Services (OGIS). The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road-OGIS, College Park, Maryland 20740-6001, e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769. Alternatively, you may contact the FBI’s FOIA Public Liaison by emailing foipaquestions@fbi.gov. If you submit your dispute resolution correspondence by email, the subject heading should clearly state “Dispute Resolution Services.” Please also cite the FOIPA Request Number assigned to your request so it may be easily identified.
See additional information which follows.
Sincerely,
Michael G. Seidel Section Chief Record/Information
Dissemination Section Information Management Division
Enclosures Additional Information:
Revisions were made to withholdings in documents previously released to you. Enclosed is an updated copy of Bates Stamped document FBI (19-cv-1278)- 1767-1777, 1803-1820, 1829-1838, 39143996.

FBI FOIPA Addendum

As referenced in our letter responding to your Freedom of Information/Privacy Acts (FOIPA) request, the FBI FOIPA Addendum provides information applicable to your request. Part 1 of the Addendum includes standard responses that apply to all requests. Part 2 includes standard responses that apply to requests for records about individuals to the extent your request seeks the listed information. Part 3 includes general information about FBI records, searches, and programs.

Part 1: The standard responses below apply to all requests:

(i)

5 U.S.C. § 552(c). Congress excluded three categories of law enforcement and national security records from the

requirements of the FOIPA [5 U.S.C. § 552(c)]. FBI responses are limited to those records subject to the

requirements of the FOIPA. Additional information about the FBI and the FOIPA can be found on the www.fbi.gov/foia

website.

(ii)

Intelligence Records. To the extent your request seeks records of intelligence sources, methods, or activities, the

FBI can neither confirm nor deny the existence of records pursuant to FOIA exemptions (b)(1), (b)(3), and as applicable to

requests for records about individuals, PA exemption (j)(2) [5 U.S.C. §§ 552/552a (b)(1), (b)(3), and (j)(2)]. The mere

acknowledgment of the existence or nonexistence of such records is itself a classified fact protected by FOIA exemption

(b)(1) and/or would reveal intelligence sources, methods, or activities protected by exemption (b)(3) [50 USC §

3024(i)(1)]. This is a standard response and should not be read to indicate that any such records do or do not exist.

Part 2: The standard responses below apply to all requests for records on individuals:

(i)

Requests for Records about any Individual—Watch Lists. The FBI can neither confirm nor deny the existence of

any individual’s name on a watch list pursuant to FOIA exemption (b)(7)(E) and PA exemption (j)(2) [5 U.S.C. §§

552/552a (b)(7)(E), (j)(2)]. This is a standard response and should not be read to indicate that watch list records do or

do not exist.

(ii)

Requests for Records about any Individual—Witness Security Program Records. The FBI can neither confirm

nor deny the existence of records which could identify any participant in the Witness Security Program pursuant to

FOIA exemption (b)(3) and PA exemption (j)(2) [5 U.S.C. §§ 552/552a (b)(3), 18 U.S.C. 3521, and (j)(2)]. This is a

standard response and should not be read to indicate that such records do or do not exist.

(iii)

Requests for Records for Incarcerated Individuals. The FBI can neither confirm nor deny the existence of records

which could reasonably be expected to endanger the life or physical safety of any incarcerated individual pursuant to

FOIA exemptions (b)(7)(E), (b)(7)(F), and PA exemption (j)(2) [5 U.S.C. §§ 552/552a (b)(7)(E), (b)(7)(F), and (j)(2)].

This is a standard response and should not be read to indicate that such records do or do not exist.

Part 3: General Information:

(i)

Record Searches. The Record/Information Dissemination Section (RIDS) searches for reasonably described records by

searching systems or locations where responsive records would reasonably be found. A standard search normally

consists of a search for main files in the Central Records System (CRS), an extensive system of records consisting of

applicant, investigative, intelligence, personnel, administrative, and general files compiled by the FBI per its law

enforcement, intelligence, and administrative functions. The CRS spans the entire FBI organization, comprising records

of FBI Headquarters, FBI Field Offices, and FBI Legal Attaché Offices (Legats) worldwide; Electronic Surveillance

(ELSUR) records are included in the CRS. Unless specifically requested, a standard search does not include references,

administrative records of previous FOIPA requests, or civil litigation files. For additional information about our record

searches, visit www.fbi.gov/services/information-management/foipa/requesting-fbi-records.

(ii)

FBI Records. Founded in 1908, the FBI carries out a dual law enforcement and national security mission. As part of

this dual mission, the FBI creates and maintains records on various subjects; however, the FBI does not maintain records

on every person, subject, or entity.

(iii)

Requests for Criminal History Records or Rap Sheets. The Criminal Justice Information Services (CJIS) Division

provides Identity History Summary Checks – often referred to as a criminal history record or rap sheet. These criminal

history records are not the same as material in an investigative “FBI file.” An Identity History Summary Check is a

listing of information taken from fingerprint cards and documents submitted to the FBI in connection with arrests,

federal employment, naturalization, or military service. For a fee, individuals can request a copy of their Identity

History Summary Check. Forms and directions can be accessed at www.fbi.gov/about-us/cjis/identity-history-

summary-checks. Additionally, requests can be submitted electronically at www.edo.cjis.gov. For additional

information, please contact CJIS directly at (304) 625-5590.

(iv)

National Name Check Program (NNCP). The mission of NNCP is to analyze and report information in response to

name check requests received from federal agencies, for the purpose of protecting the United States from foreign and

domestic threats to national security. Please be advised that this is a service provided to other federal agencies. Private

Citizens cannot request a name check.

EXPLANATION OF EXEMPTIONS

SUBSECTIONS OF TITLE 5, UNITED STATES CODE, SECTION 552

(b)(1) (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified to such Executive order;

(b)(2) related solely to the internal personnel rules and practices of an agency;

(b)(3)

specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;

(b)(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(b)(5) 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;

(b)(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(b)(7)

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ( A ) could reasonably be expected to interfere with enforcement proceedings, ( B ) would deprive a person of a right to a fair trial or an impartial adjudication, ( C ) could reasonably be expected to constitute an unwarranted invasion of personal privacy, ( D ) could reasonably be expected to disclose the identity of confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, ( E ) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or ( F ) could reasonably be expected to endanger the life or physical safety of any individual;

(b)(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or

(b)(9) geological and geophysical information and data, including maps, concerning wells.

SUBSECTIONS OF TITLE 5, UNITED STATES CODE, SECTION 552a

(d)(5) information compiled in reasonable anticipation of a civil action proceeding;

(j)(2) material reporting investigative efforts pertaining to the enforcement of criminal law including efforts to prevent, control, or reduce crime or apprehend criminals;

(k)(1) information which is currently and properly classified pursuant to an Executive order in the interest of the national defense or foreign policy, for example, information involving intelligence sources or methods;

(k)(2)

investigatory material compiled for law enforcement purposes, other than criminal, which did not result in loss of a right, benefit or privilege under Federal programs, or which would identify a source who furnished information pursuant to a promise that his/her identity would be held in confidence;

(k)(3) material maintained in connection with providing protective services to the President of the United States or any other individual pursuant to the authority of Title 18, United States Code, Section 3056;

(k)(4) required by statute to be maintained and used solely as statistical records;

(k)(5)

investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment or for access to classified information, the disclosure of which would reveal the identity of the person who furnished information pursuant to a promise that his/her identity would be held in confidence;

(k)(6) testing or examination material used to determine individual qualifications for appointment or promotion in Federal Government service the release of which would compromise the testing or examination process;

(k)(7) material used to determine potential for promotion in the armed services, the disclosure of which would reveal the identity of the person who furnished the material pursuant to a promise that his/her identity would be held in confidence.

FBI/DOJ

 
 Case 1:19-cv-01278 Document 1 Filed 05/02/19 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JASON LEOPOLD,

)

6824 Lexington Avenue

)

Los Angeles, CA 90038

)

)

BUZZFEED INC.,

)

111 East 18th Street, 13th Floor

)

New York, NY 10003

)

)

Plaintiffs,

)

)

v.

)

)

U.S. DEPARTMENT OF JUSTICE,

)

950 Pennsylvania Avenue, NW

)

Washington, D.C. 20530

)

)

DOJ OFFICE OF ATTORNEY GENERAL, )

950 Pennsylvania Avenue, NW

)

Washington, D.C. 20530

)

)

DOJ DEPUTY ATTORNEY GENERAL,

)

950 Pennsylvania Avenue, NW

)

Washington, D.C. 20530

)

)

DOJ OFFICE OF SPECIAL COUNSEL,

)

950 Pennsylvania Avenue, NW

)

Washington, D.C. 20530

)

)

FEDERAL BUREAU OF

)

INVESTIGATION,

)

935 Pennsylvania Avenue, NW

)

Washington, D.C. 20535

)

)

Defendants.

)

COMPLAINT

1. Plaintiffs JASON LEOPOLD and BUZZFEED INC. file this Freedom of

Information Act suit seeking the prompt release of certain records relating to the Special

Counsel’s investigation into Russian interference with the 2016 Presidential election and related

matters.

Case 1:19-cv-01278 Document 1 Filed 05/02/19 Page 2 of 7
PARTIES 2. Plaintiffs JASON LEOPOLD and BUZZFEED INC. are members of the media and made the FOIA request at issue in this case. 3. Defendants are federal agencies subject to the Freedom of Information Act, 5 U.S.C. § 552, and/or components of the U.S. Department of Justice.
JURISDICTION AND VENUE 4. This case is brought under 5 U.S.C. § 552(a)(6)(c)(i) and presents a federal question conferring jurisdiction on this Court. 5. Venue is proper under 5 U.S.C. § 552(a)(4)(B).
MARCH 21, 2019 FOIA TO DOJ (REPORT MATERIALS) 6. On March 21, 2019, Plaintiffs submitted the following request to DOJ: “Copies of any and all records, which includes but is not limited to FBI 302s, emails, memos, letters, charts, used by the Office of Special Counsel Robert Mueller during the drafting and preparation of its FINAL REPORT relating to the Office’s investigation into: any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).” 7. Plaintiffs requested expedited processing. 8. DOJ assigned the following number to the request: DOJ-2019-003098. 9. On March 29, 2019, DOJ granted expedited processing, but asserted that due to “unusual circumstances,” “we will need to extend the time limit to respond to your request beyond the ten additional days provided by the statute.” 10. As of the date of this filing, DOJ has not issued a determination or produced responsive records.
- 2 -

Case 1:19-cv-01278 Document 1 Filed 05/02/19 Page 3 of 7
MARCH 25, 2019 FOIA TO DOJ (SUBPOENAS AND WARRANTS) 11. On March 25, 2019, DOJ received the following request from Plaintiffs: “Copies of the 2800 subpoenas issued/executed by Special Counsel Robert Mueller during his investigation into any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a). 2. Copies of the 500 search warrants issued/executed by Special Counsel Robert Mueller during his investigation into any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).” 12. Plaintiffs sought expedited processing of the request. 13. Defendants assigned the following number to the request: DOJ-2019-003140. 14. On April 4, 2019, DOJ granted expedited processing, but asserted that due to “unusual circumstances,” “we will need to extend the time limit to respond to your request beyond the ten additional days provided by the statute.” 15. As of the date of this filing, DOJ has not issued a determination or produced responsive records.
MARCH 27, 2019 FOIA TO FBI (302’S) 16. On March 27, 2019, Plaintiffs sent the following request to FBI: “All FBI 302s maintained/stored/in possession of the FBI relating or referring to all of the individuals who were questioned and interviewed by FBI agents working for the Office of Special Counsel Robert Mueller during his investigation into: any links and/or coordination between the Russian
- 3 -

Case 1:19-cv-01278 Document 1 Filed 05/02/19 Page 4 of 7
government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).”
17. FBI assigned the following FOIPA request number to the request: 1432673-000. 18. On April 2, 2019, FBI acknowledged receipt of the request. 19. As of the date of this filing, FBI has not issued a determination or produced responsive records.
MARCH 25, 2019 FOIA TO DOJ (MUELLER RECORDS) 20. On March 25, 2019, DOJ received from Plaintiff the following FOIA request: “All documents and records collected, maintained and stored by the Office of Special Counsel Robert Mueller since May 17, 2017 during the Office’s investigation into: any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).” 21. Plaintiffs sought expedited processing of the request. 22. Defendants assigned the following tracking number to the request: DOJ-2019003143. 23. On April 4, 2019, DOJ granted expedited processing, but asserted that due to “unusual circumstances,” “we will need to extend the time limit to respond to your request beyond the ten additional days provided by the statute.” 24. As of the date of this filing, DOJ has not issued a determination or produced responsive records.
- 4 -

Case 1:19-cv-01278 Document 1 Filed 05/02/19 Page 5 of 7
APRIL 3, 2019 FOIA TO DOJ (SUMMARIES) 25. On April 3, 2019, Plaintiffs submitted the following request to DOJ: “1. Any and all summaries of the final Mueller report written/drafted by investigators/prosecutors/attorneys working on Special Counsel Robert Mueller's investigation into any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump. 2. Any reports or documents that summarized Special Counsel Robert Mueller's final report into any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump. These summaries could have been written by any individual working on Special Counsel Robert Mueller's investigation. 3. Any and all records, which includes but is not limited to emails, memos, letters, text messages, in possession of the Attorney General, the Deputy Attorney General and the Office of Special Counsel, that mentions or refers to summaries.” 26. Plaintiffs requested expedited processing. 27. Defendants assigned the following number to the request: DOJ-2019-003627. 28. On April 12, 2019, DOJ acknowledged receipt of the request, and granted expedited processing, but asserted that due to “unusual circumstances,” “we will need to extend the time limit to respond to your request beyond the ten additional days provided by the statute.” 29. As of the date of this filing, DOJ has not issued a determination or produced responsive records.
MARCH 27, 2019 FOIA TO FBI (FBI COMMUNICATIONS) 30. On March 27, 2019, Plaintiffs sent the following FOIA request to FBI: “the following NON INVESTIGATIVE records. This request may be limited to senior leadership in the Office of the Director, Deputy Director, the Office of General Counsel, Criminal
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Case 1:19-cv-01278 Document 1 Filed 05/02/19 Page 6 of 7
Investigative Division, Cyber Division, Counterintelligence Division, Directorate of Intelligence and International Operations Division: 1. Any and all records, which includes but is not limited to emails, memos, letters, text messages, that mentions or refers to Special Counsel Robert Mueller's final report relating to the [Office’s] investigation into: any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump. 2. Any and all records, which includes but is not limited to emails, memos, letters, text messages, that mentions or refers to Attorney General William Barr’s four page summary of Special Counsel Robert Mueller’s final report relating to the [Office’s] investigation into: any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump. 3. Any and all emails that mentions or refers to Robert Mueller, the Mueller report, Donald Trump, President Trump, obstruction, collusion, Russia, William Barr, Attorney General Barr, Rod Rosenstein, counterintelligence. The timeframe for the three parts of this request is March 15, 2019 through the date the search for responsive records is conducted. PLEASE NOTE: I AM NOT SEEKING INVESTIGATIVE RECORDS STORED IN THE CRS. I AM SEEKING NON INVESTIGATIVE RECORDS.”
31. FBI assigned the following FOIPA request number to the request: 1432684-000. 32. On April 2, 2019, FBI acknowledged receipt of the request. 33. As of the date of this filing, FBI has not issued a determination or produced responsive records.
COUNT I – DOJ FOIA VIOLATIONS 34. The above paragraphs are incorporated herein. 35. DOJ and the Defendant components are agencies subject to FOIA. 36. Plaintiffs made FOIA requests to the DOJ Defendants for agency records.
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37. The DOJ Defendants have failed to issue determinations and/or produce the requested records.
COUNT II – FBI FOIA VIOLATIONS 38. The above paragraphs are incorporated herein. 39. FBI is an agency subject to FOIA. 40. Plaintiffs made a FOIA request to FBI for agency records. 41. FBI has failed to issue determinations and/or produce the requested records. WHEREFORE, Plaintiffs ask the Court to:
i. Order Defendants to produce the requested records; ii. Award Plaintiffs attorney fees and costs; and iii. Enter any other relief the Court deems appropriate.
DATED: May 2, 2019
Respectfully Submitted, /s/ Matthew Topic Attorneys for Plaintiffs Matthew Topic Joshua Burday (E-Mail: foia@loevy.com) LOEVY & LOEVY 311 N. Aberdeen, Third Floor Chicago, Illinois 60607 Tel.: (312) 243-5900 Fax: (312) 243-5902 Bar Nos. IL0037 and IL0042
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 Case 1:19-cv-01278-CKK Document 20 Filed 07/15/19 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JASON LEOPOLD, BUZZFEED, INC.,

Plaintiffs, v. U.S. DEPARTMENT OF JUSTICE, et al.,
Defendants.

Case No. 1:19-cv-1278 (CKK)

JOINT STATUS REPORT Pursuant to the Court’s June 14, 2019, Order, the parties hereby submit this Joint Status Report in this Freedom of Information Act (“FOIA”) case. I. Plaintiffs’ Statement
A. The Status of Plaintiffs’ FOIA Requests Defendants have not issued “determinations,” as the D.C. Circuit has defined that term, on any of the requests at issue in this case.
B. Discussions Regarding the Scope of Plaintiffs’ FOIA Requests Counsel have conferred regarding the scope of certain of Plaintiffs’ requests multiple times between June 12 and July 12, and will continue to do so.
C. Status of Defendants’ Searches It is Plaintiffs’ understanding that Defendants have begun searching for and processing responsive records for some of the requests and that Defendants claim that other requests Defendants are not required to process, which Plaintiffs dispute. Plaintiffs will continue to confer with Defendants about those requests in an effort to avoid motion practice, if possible.

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D. The Anticipated Number of Documents Responsive to Plaintiffs’ FOIA Requests
Defendants provide numeric estimates to Plaintiffs on the afternoon of July 12, 2019. Plaintiffs have not yet had an opportunity fully to evaluate them, their underlying assumptions, or the extent to which deduplication or other tools would substantially reduce the volume of records to be processed. Plaintiffs are initially skeptical that the Special Counsel’s Office has a larger volume of data than the entirety of the Library of Congress. See https://blogs.loc.gov/thesignal/2011/07/transferring-libraries-of-congress-of-data/ (noting common estimate of 10 terabytes of data). Plaintiffs will continue to confer with Defendants about the requests, and a briefing schedule on any motions contemplated by Defendants, in advance of the next status report.
E. The Anticipated Date(s) for Release of the Documents Requested by Plaintiffs
Plaintiffs request that Defendants make releases every 30 days. Given the importance of the records to the next Presidential election, where the President will likely continue to refer to the Mueller investigation as an illegal, politically motivated witch hunt, and where his opponents may argue that the President should have been charged with a crime, Plaintiffs request that each Defendant process at least 2500 pages per month so that the public will have as much information as possible to evaluate competing claims about the investigation.
F. Whether A Motion for Stay is Likely Under Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976)
Defendants have not provided Plaintiffs with any evidence meeting the requirements for an Open America stay.
G. Whether a Vaughn Index Will be Required in This Case
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Because Defendants are likely to withhold or redact various records, Plaintiffs anticipate that a Vaughn Index will be required for any material that is withheld.
H. Further Joint Status Reports Plaintiffs propose that the parties file a joint status report on October 3, 2019.
II. DEFENDANT’S STATEMENT A. The Status of Plaintiffs’ FOIA Requests i. Plaintiffs’ FOIA Requests
This case concerns four of Plaintiffs’ FOIA requests submitted to the Department of Justice (“DOJ”) and two of Plaintiffs’ requests submitted to the Federal Bureau of Investigation (“FBI”) in March and April 2019 for records related to the investigation conducted by the Office of the Special Counsel and the “Report On The Investigation Into Russian Interference In The 2016 Presidential Election” (hereinafter, “Mueller Report” or “Report”).1 Two of the requests to DOJ and one request to FBI contain multiple subparts.
The four requests submitted to DOJ are as follows:
• Request No. DOJ-2019-003098: “I request disclosure from the Office of Attorney General, the Deputy Attorney General, and the Office of Special Counsel Robert Mueller the following records: 1. Copies of any and all records, which includes but is not limited to FBI 302s, emails, memos, letters, charts, used by the Office of Special Counsel Robert Mueller during the drafting and preparation of its FINAL REPORT relating to the Office’s investigation into: any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise
1 In their Complaint, Plaintiffs name as defendants the following entities and individual: “U.S. Department of Justice,” “DOJ Office of Attorney General,” “DOJ Deputy Attorney General,” “DOJ Office of Special Counsel,” and “Federal Bureau of Investigation.” Compl. at 1, Dkt. 1. Because the Office of the Attorney General, the Deputy Attorney General, the Office of the Special Counsel, and the Federal Bureau of Investigation are part of the Department of Justice, Defendant’s position is that the Department of Justice is the only proper defendant in this matter.
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directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).” See Dkt. 14-1.
• Request No. DOJ-2019-003140: “I request disclosure from the Office of the Attorney General, the Deputy Attorney General and the Office of Special Counsel the following records:
1. Copies of the 2800 subpoenas issued/executed by Special Counsel Robert Mueller during his investigation into any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).
2. Copies of the 500 search warrants issued/executed by Special Counsel Robert Mueller during his investigation into any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).” See Dkt. 14-3.
• Request No. DOJ-2019-003143: “I request disclosure from the Office of Special Counsel Robert Mueller the following records: All documents and records collected, maintained and stored by the Office of Special Counsel Robert Mueller since May 17, 2017 during the Office’s investigation into: any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).” See Dkt. 14-7.
• Request No. DOJ-2019-003627: “I request disclosure from the Office of the Attorney General, the Office of Deputy Attorney General and the Office of Special Counsel the following records:
1. Any and all summaries of the final Mueller report written/drafted by investigators/prosecutors/attorneys working on Special Counsel Robert Mueller’s investigation into any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.
2. Any reports or documents that summarized Special Counsel Robert Mueller’s final report into any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump. These summaries could have been written by any individual working on Special Counsel Robert Mueller’s investigation.
3. Any and all records, which includes but is not limited to emails, memos, letters, text messages, in possession of the Attorney General, the Deputy Attorney
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General and the Office of Special Counsel, that mentions or refers to summaries.” See Dkt. 14-9.
The two requests submitted to FBI are as follows:
• Request No. 1432673-000: “I request disclosure from the FBI the following investigative records: 1. All FBI 302s maintained/stored/in possession of the FBI relating or referring to all of the individuals who were questioned and interviewed by FBI agents working for the Office of Special Counsel Robert Mueller during his investigation into: any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).” See Dkt. 14-5.
• Request No. 1432684-000: “I request disclosure from the FBI for the following NON INVESTIGATIVE records. This request may be limited to senior leadership in the Office of the Director, Deputy Director, the Office of General Counsel, Criminal Investigative Division, Cyber Division, Counterintelligence Division, Directorate of Intelligence and International Operations Division:
1. Any and all records, which includes but is not limited to emails, memos, letters, text messages, that mentions or refers to Special Counsel Robert Mueller’s final report relating to the [Office’s] investigation into: any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.
2. Any and all records, which includes but is not limited to emails, memos, letters, text messages, that mentions or refers to Attorney General William Barr’s four page summary of Special Counsel Robert Mueller’s final report relating to the [Office’s] investigation into: any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.
3. Any and all emails that mentions or refers to Robert Mueller, the Mueller report, Donald Trump, President Trump, obstruction, collusion, Russia, William Barr, Attorney General Barr, Rod Rosenstein, counterintelligence. The timeframe for the three parts of this request is March 15, 2019 through the date the search for responsive records is conducted.
PLEASE NOTE: I AM NOT SEEKING INVESTIGATIVE RECORDS STORED IN THE CRS. I AM SEEKING NON INVESTIGATIVE RECORDS.” See Dkt. 14-11.
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ii. Discussions Regarding the Scope of Plaintiffs’ FOIA Requests Counsel for the parties have conferred regarding the scope of certain of Plaintiffs’ requests multiple times between June 12 and July 12, but have not reached a resolution regarding the scope of Plaintiffs’ FOIA requests. Counsel intend to continue their discussions.
B. The Anticipated Number of Documents Responsive to Plaintiffs’ FOIA Requests
The Office of the Special Counsel has wound down and completed transfer of control of its records, which are voluminous, to other DOJ offices and custodians.
Two agency offices are processing Plaintiffs’ FOIA requests. The Office of Information Policy (“OIP”) is processing the four requests submitted to DOJ, and the FBI is processing the two requests submitted to FBI. OIP has begun conducting preliminary inquiries of the indexed material to locate responsive records. FBI has begun searching for and processing responsive records, though no records are ready for release at this time.
For Request No. DOJ-2019-003143—Plaintiffs’ request for all records from the Office of the Special Counsel—the volume of responsive documents is enormous.
Defendant estimates that the approximate number of responsive records that OIP would process is as follows:
• 11 terabytes of non-email digital data, which is the approximate equivalent of 825 million pages (assuming each terabyte consists of 75 million pages); and
• 318 gigabytes of email, which is the approximate equivalent of over 215 million pages (assuming each gigabyte consists of 677,963 pages).
Defendant estimates that the approximate number of responsive records that FBI would process is as follows:
• More than 2 million pages of investigative records that are not on media devices; and
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• More than 2,300 media devices that have a combined storage capacity of 240 terabytes of data. If these devices are filled to capacity, this is the approximate equivalent 18 billion pages.
Defendant represents that it cannot process records responsive to this request within any reasonable amount of time. Because of the volume of documents, it is Defendant’s position that this request is overbroad and not a proper FOIA request and should be dismissed from the case. Defendant anticipates moving to dismiss this request as overbroad and unduly burdensome.
As for Plaintiffs’ other requests, because OIP and FBI have been unable to complete some of their searches for documents responsive to Plaintiffs’ FOIA requests, Defendant is not currently able to determine the approximate number of records responsive to each of Plaintiffs’ FOIA requests. Once Defendant has sufficient information concerning the approximate number of records responsive other requests, and after the parties finish conferring regarding the scope of Plaintiffs’ requests, Defendant may also move to dismiss those requests as overbroad and unduly burdensome.
C. The Anticipated Date(s) for Release of the Documents Requested by Plaintiffs
Defendant proposes making its first response to one or more of Plaintiffs’ FOIA requests of any documents that are identifiable and not unduly burdensome on September 26, 2019. Thereafter, Defendant proposes to make rolling responses every 90 days. The responses would include, if applicable, productions of non-exempt responsive records that are identifiable and not unduly burdensome.
As part of its processing, Defendant will review whether documents implicate the equities of other agencies. If so, Defendant will forward those documents to the appropriate agencies for consultation. After completing the relevant consultations (the timing of which is
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uncertain and depends in part on the response times of the other agencies), Defendant will produce any remaining non-exempt, responsive records subject to FOIA.
Given the law enforcement sensitivities and the necessary consultations, Defendant cannot commit to processing a specific number of pages each month at this time. As a benchmark, the ordinary maximum number of pages that the FBI reviews/processes is 500 pages per month per request. By processing and making interim responses based on 500-page work items, the FBI is able to provide more pages to more requesters, thus avoiding a system where a few large requests monopolize finite processing resources and where fewer requesters’ requests are being fulfilled.2 By working in 500-page increments, the FBI has found that more pages get processed, reviewed, and released to more requesters each month because processors can work on 500-page work items for several requests in a month. Also, 500-page work items are more manageable for the subject matter experts (“SMEs”) outside of the FBI’s Record/Information Dissemination Section (“RIDS”) who review the materials to ensure that FBI equities are properly addressed and who juggle these FOIPA reviews with their regularly-assigned work.3 Finally, it is more efficient to run required information security protocols on FOIPA releases of 500 pages or less.
If the Court imposes a more burdensome production schedule, such as the schedule proposed by Plaintiffs, the FBI and OIP would potentially be forced to reallocate resources in a
2 The FOIA encourages agencies to develop multi-track processing with the goal of responding to more requests. See, e.g., 5 U.S.C. § 552(a)(6)(D). As a result, the FBI has established four processing queues for small requests (1-50 pages), medium requests (51-950 pages), large requests (951-8,000 pages), and extra-large requests (more than 8,000 pages). 3 SMEs can include special agents and intelligence analysts who worked on particular investigations; special agents, intelligence analysts, or other employees who are experts in particular operational or technical subject matters, such as cyber or foreign intelligence threats or CART examinations; and attorneys.
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way that would deprive other FOIA requesters and litigants the timely production of their documents. Beyond that, this case is complicated well beyond a typical FOIA case. The office that collected or created the records – the Special Counsel’s Office – is closed, and other Department entities are responsible for processing those records. The Special Counsel’s investigation encompassed both counterintelligence and criminal aspects, and the records gathered and created are voluminous. While the Special Counsel’s Office is closed, charged cases remain pending in numerous U.S. Attorney’s Offices across the country, and other investigations remain active as well. These factors substantially complicate the Department’s ability to search for and process records, and make it impossible at this time to accurately predict the number of pages we can produce each month. This is all the more difficult because the parties have not yet been able to agree on a reasonable scope for some of the requests.
D. Whether A Motion for Stay is Likely Under Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976)
At this time, Defendant does not anticipate moving for an Open America stay. However, if the request for all records from the Office of the Special Counsel is not narrowed or struck from the Complaint, given the volume of records potentially responsive to that request, Defendant may move for such a stay. Defendant may move for a stay depending on the volume of records responsive to other requests.
E. Whether a Vaughn Index Will be Required in This Case Defendant proposes that the parties be allowed time to confer, following Defendant’s productions of those documents that are identifiable and not unduly burdensome, to determine whether any issues remain in dispute and whether a Vaughn index and summary judgment briefing may be necessary in this case.
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Dated: July 15, 2019

Respectfully submitted,
/s/ Matthew V. Topic Matthew Topic Joshua Burday (E-Mail: foia@loevy.com) LOEVY & LOEVY 311 N. Aberdeen, Third Floor Chicago, Illinois 60607 Tel.: (312) 243-5900 Fax: (312) 243-5902 Bar Nos. IL0037 and IL0042
Counsel for Plaintiffs
JOSEPH H. HUNT Assistant Attorney General
ELIZABETH J. SHAPIRO Deputy Director
/s/ Courtney D. Enlow COURTNEY D. ENLOW (N.C. Bar No. 46578) Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W., Room 12012 Washington, D.C. 20005 Telephone: (202) 616-8467 Facsimile: (202) 616-8470 courtney.d.enlow@usdoj.gov
Counsel for Defendant

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 Case 1:19-cv-01278-RBW Document 25-1 Filed 08/27/19 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

JASON LEOPOLD, BUZZFEED, INC., )

)

Plaintiffs,

)

)

v.

)

Civil Action No. 19-cv-1278 (CKK)

)

UNITED STATES DEPARTMENT OF )

JUSTICE, et al.

)

)

Defendants.

)

___________________________________ )

MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS

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TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 I. Plaintiffs’ FOIA Requests................................................................................................... 2 II. The Instant Litigation.......................................................................................................... 4 III. Plaintiffs’ Refusals to Narrow Their Requests ................................................................... 4 IV. The Massive Anticipated Volume of Records Responsive to Plaintiffs’ Request
for “All SCO Records” ....................................................................................................... 6 STANDARD OF REVIEW ............................................................................................................ 9 ARGUMENT .................................................................................................................................. 9 I. Plaintiffs’ Request for “All SCO Records” is Overbroad and Must Be Dismissed............ 9 II. Plaintiffs’ Request for All Records “Used By” the Special Counsel’s Office
“During the Drafting and Preparation of” the Mueller Report is Impermissibly Vague and Must be Dismissed.......................................................................................... 13 CONCLUSION............................................................................................................................. 17
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TABLE OF AUTHORITIES
CASES
*American Federation of Government Employees, Local 2782 v. Department of Commerce, 907 F.2d 203 (D.C. Cir. 1990)................................................................................... 4, 10, 11, 12
*Assassination Archives & Research Ctr., Inc. v. CIA, 720 F. Supp. 217 (D.D.C. 1989), aff’d in pertinent part, No. 89-5414, 1990 WL 123924 (D.C. Cir. Aug. 13, 1990)................................................. 10, 14
Bowman v. District of Columbia, 562 F. Supp. 2d 30 (D.D.C. 2008)............................................................................................... 9
Church of Scientology of Cal. v. IRS, 792 F.2d 146 (D.C. Cir. 1986)................................................................................................... 13
Dale v. IRS, 238 F. Supp. 2d 99 (D.D.C. 2002)................................................................................. 10, 14, 16
Dixon v. U.S. Dep’t of Justice, 279 F. Supp. 3d 1 (D.D.C. 2017), aff’d, No. 17-5223, 2018 WL 4610736 (D.C. Cir. Sept. 10, 2018) .................................................... 10
Fonda v. CIA, 434 F. Supp. 498 (D.D.C. 1977).......................................................................................... 10, 15
*Freedom Watch v. State, 925 F. Supp. 2d 55 (D.D.C. 2013)....................................................................................... 11, 13
*Freedom Watch, Inc. v. CIA, 895 F. Supp. 2d 221 (D.D.C. 2012).................................................................................... passim
Guance v. Burnett, 849 F.2d 1475 (9th Cir. 1988) ................................................................................................... 11
Int’l Counsel Bureau v. Dep’t of Defense, 723 F. Supp. 2d 54 (D.D.C. 2010)....................................................................................... 10, 11
Irons v. Schuyler, 465 F.2d 608 (D.C. Cir. 1972)................................................................................................... 10
Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1 (D.D.C. 1995)...................................................................................................... 9
*Judicial Watch, Inc. v. Dep’t of State, 681 F. App’x 2 (D.C. Cir. 2017) ......................................................................................... 10, 13
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*Judicial Watch, Inc., v. Export-Import Bank, 108 F. Supp. 2d 19 (D.D.C. 2000)....................................................................................... 14, 16
Kowalczyk v. Dep’t of Justice, 73 F.3d 386 (D.C. Cir. 1996)..................................................................................................... 14
Leopold v. Dep’t of Justice, 301 F. Supp. 3d 13 (D.D.C. 2018)............................................................................................... 9
Maniaci v. Georgetown Univ., 510 F. Supp. 2d 50 (D.D.C. 2007)............................................................................................... 9
Marks v. Dep’t of Justice, 578 F.2d 261 (9th Cir. 1978) ..................................................................................................... 10
Mason v. Callaway, 554 F.2d 129 (4th Cir. 1977) ..................................................................................................... 10
Massachusetts v. DHHS, 727 F. Supp. 35 (D. Mass. 1989)............................................................................................... 14
Moore v. FBI, 883 F. Supp. 2d 155 (D.D.C. 2012)........................................................................................... 14
Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885 (D.C. Cir. 1995)............................................................................................... 10, 13
Patino-Restrepo v. Dep’t of Justice, No. 17-5143, 2019 WL 1250497 (D.C. Cir. 2019) ................................................................... 10
*Sack v. CIA, 53 F. Supp. 3d 154 (D.D.C. 2014)...................................................................................... passim
Schrecker v. Dep’t of Justice, 349 F.3d 657 (D.C. Cir. 2003)................................................................................................... 10
Truitt v. Dep’t of State, 897 F.2d 540 (D.C. Cir. 1990)..................................................................................................... 9
STATUTES 5 U.S.C. § 552................................................................................................................................. 9 RULES Fed. R. Civ. P. 12 ............................................................................................................................ 9
iii

Case 1:19-cv-01278-RBW Document 25-1 Filed 08/27/19 Page 5 of 23 REGULATIONS 28 C.F.R. § 16.3 .............................................................................................................................. 9 28 C.F.R. § 600.4 ............................................................................................................................ 3 28 C.F.R. § 600.8 .......................................................................................................................... 12 OTHER AUTHORITIES Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian
Interference with the 2016 Presidential Election and Related Matters, https://www.justice.gov/opa/press-release/file/967231/download ........................................ 3, 12 Report On The Investigation Into Russian Interference In The 2016 Presidential Election, https://www.justice.gov/storage/report.pdf ............................................................................... 12
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INTRODUCTION Under the Freedom of Information Act (“FOIA”), a request for information to an agency must “reasonably describe[]” the records sought. Requests that lack sufficient particularity or are so broad as to impose an unreasonable burden upon the agency are not valid requests that an agency need not honor. Several of the FOIA requests at issue in this case are not valid requests because they impose unreasonable burdens upon the Department of Justice (the “Department” or “DOJ”) and/or fail to properly describe the records sought, and should therefore be dismissed from the case. Plaintiffs, Jason Leopold and BuzzFeed, Inc., submitted to Defendant, the Department of Justice,1 a FOIA request for all records from the Office of the Special Counsel (the “Special Counsel’s Office” or “SCO”) during the entirety of its nearly two-year investigation into election interference efforts emanating from Russia. This sweeping request would require DOJ to process millions of pages of responsive records, thereby imposing an unreasonable burden on the Department. Even after being informed of the estimated enormous volume of responsive records, Plaintiffs refused to narrow their request in any respect. Another of Plaintiffs’ FOIA requests imposes an unreasonable burden on the Department because it lacks sufficient particularity. Plaintiffs request all records “used by” the Special Counsel’s Office during the “drafting and preparation of” the 448-page Report On The Investigation Into Russian Interference In The 2016 Presidential Election (the “Mueller Report” or “Report”). Although DOJ proposed to narrow that request to materials cited in the Report not
1 In their Complaint, Plaintiffs name as defendants the following entities and individual: “U.S. Department of Justice,” “DOJ Office of Attorney General,” “DOJ Deputy Attorney General,” “DOJ Office of Special Counsel,” and “Federal Bureau of Investigation.” Compl. at 1, ECF No. 1. Because the Office of the Attorney General, the Deputy Attorney General, the Office of the Special Counsel, and the Federal Bureau of Investigation are part of the Department of Justice, Defendant’s position is that the Department of Justice is the only proper defendant in this matter.
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in the public domain—which would be a large, but discrete, volume of records—Plaintiffs refused to narrow their request in any respect.
As is apparent from the face of Plaintiffs’ Complaint, these FOIA requests are overbroad and are not reasonably described. Accordingly, the Court should dismiss these FOIA requests from the case.
BACKGROUND I. Plaintiffs’ FOIA Requests
Plaintiffs have submitted numerous FOIA requests—some with multiple parts—to the Department of Justice and the Federal Bureau of Investigation (“FBI”) related to Special Counsel Robert S. Mueller, III’s investigation into election interference efforts emanating from Russia. Six of those requests are at issue in Plaintiffs’ Complaint, and two of the requests are at issue in this motion.
On March 21, 2019, Plaintiffs submitted the following request to DOJ for “any and all records” “used by” the Special Counsel’s Office “during the drafting and preparation” of the 448page Mueller Report:
I request disclosure from the Office of Attorney General, the Deputy Attorney General, and the Office of Special Counsel Robert Mueller the following records: 1. Copies of any and all records, which includes but is not limited to FBI 302s, emails, memos, letters, charts, used by the Office of Special Counsel Robert Mueller during the drafting and preparation of its FINAL REPORT relating to the Office’s investigation into: any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald
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Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).2, 3
Answer, Exh. A (FOIA request), ECF No. 14-1; Statement of Facts (“SOF”) ¶ 7. DOJ assigned
this request the tracking number DOJ-2019-003098. See Answer, Exh. B (DOJ Response), ECF
No. 14-2; SOF ¶ 8.
On March 25, 2019, Plaintiffs submitted the following request to DOJ for all records from
the Special Counsel’s Office:
I request disclosure from the Office of Special Counsel Robert Mueller the following records:
1. All documents and records collected, maintained and stored by the Office of Special Counsel Robert Mueller since May 17, 2017 during the Office’s investigation into: any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).4
Answer, Exh. G (FOIA request), ECF No. 14-7; SOF ¶ 9. The “short description” of this request
was for “all SCO records.” Answer, Exh. G (FOIA request), ECF No. 14-7; SOF ¶ 10. DOJ
2 This is the full text of Plaintiffs’ request, except for a footnote referencing the DOJ Order appointing the Special Counsel. See infra n.3. Although Plaintiffs appear to have begun a list by stating “1. Copies of any and all records . . .”, there is no “2.” See Answer, Exh. A (FOIA request), ECF No. 14-1.
3 The two FOIA requests at issue both contain the following language: “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).” See Answer, Exh. A, G (FOIA requests), ECF Nos. 14-1, 14-7. This language is from the DOJ Order appointing Mr. Mueller as Special Counsel and describes the scope of the Special Counsel’s investigation. See Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters, https://www.justice.gov/opa/pressrelease/file/967231/download.
4 Here again, although Plaintiffs appear to have begun a list by stating “1. All documents and records . . .”, there is no “2.” See Answer, Exh. G (FOIA request), ECF No. 14-7.
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assigned this request the tracking number DOJ-2019-003143. See Answer, Exh. H (DOJ Response), ECF No. 14-8; SOF ¶ 11. II. The Instant Litigation
On May 2, 2019, Plaintiffs filed their Complaint. ECF No. 1. Defendant filed its answer to the Complaint on June 13, 2019. Answer, ECF No. 14. In its answer, Defendant raised the defense that “Plaintiffs’ FOIA requests are overbroad and/or not reasonably described.” Id. at 7. The pleadings are now closed, and partial judgment on the pleadings is warranted for Defendant under Rule 12(c) of the Federal Rules of Civil Procedure. III. Plaintiffs’ Refusals to Narrow Their Requests
On June 12, 2019, counsel for DOJ proposed that Plaintiffs strike or narrow their request for all SCO records because the request is overbroad and the volume of responsive records poses an undue burden on the Department. Exh. C at 2–3 (emails between counsel dated from June 12, 2019, through June 19, 2019); SOF ¶ 12. On June 15, Plaintiffs’ counsel stated that Plaintiffs “aren’t inclined to narrow” the request, expressing the view that the “volume of records to process is not a valid objection.” Exh. C at 2; SOF ¶ 13. On June 19, DOJ counsel “disagree[d] that an overbroad request is not a valid objection,” and, referencing American Federation of Government Employees, Local 2782 v. Department of Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990), counsel further stated that “courts have recognized that an overbroad request provides a basis for the agency to not comply with the request.” Exh. C at 1; SOF ¶ 14. That same day, Plaintiffs’ counsel “disagree[d] that [DOJ] established that compliance would be unreasonable,” and further stated that Plaintiffs “are prepared to litigate that issue.” Exh. C at 1; SOF ¶ 15.
Upon further review of Plaintiffs’ FOIA requests, on July 12, counsel for DOJ proposed that Plaintiffs narrow their request for all records “used by” SCO in the “drafting and preparation”
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of the Mueller Report to material cited in the Report that is not in the public domain. Exh. D at 2– 3 (emails between counsel dated from June 12, 2019, through July 29, 2019); SOF ¶ 16.
On July 15, the parties submitted a joint status report, in which DOJ provided its estimate of the number of records responsive to Plaintiffs’ request for all records from the Special Counsel’s Office. See Joint Status Report at 6–7, ECF No. 20. Because DOJ’s Office of Information Policy (“OIP”) and the FBI are responsible for processing different sets of SCO records, DOJ provided estimates from both OIP and FBI. See id. As stated in the joint status report,
Defendant estimates that the approximate number of responsive records that OIP would process is as follows:
• 11 terabytes of non-email digital data, which is the approximate equivalent of 825 million pages (assuming each terabyte consists of 75 million pages); and
• 318 gigabytes of email, which is the approximate equivalent of over 215 million pages (assuming each gigabyte consists of 677,963 pages). Defendant estimates that the approximate number of responsive records that FBI would process is as follows:
• More than 2 million pages of investigative records that are not on media devices; and
• More than 2,300 media devices that have a combined storage capacity of 240 terabytes of data. If these devices are filled to capacity, this is the approximate equivalent 18 billion pages. Defendant represents that it cannot process records responsive to this request within any reasonable amount of time. Id. On July 26, because Plaintiffs’ counsel had not responded to DOJ’s proposals to narrow, DOJ counsel further inquired whether Plaintiffs would agree to narrow their requests. Specifically, DOJ counsel inquired as to whether Plaintiffs would narrow their request for all SCO records and for all records “used by” the Special Counsel’s Office in the “drafting or preparation” of the
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Mueller Report. Exh. D at 1 (emails between counsel dated from June 12, 2019, through July 29, 2019); SOF ¶ 18.
On July 29, Plaintiffs refused to narrow either request in any respect. Exh. D at 1; SOF ¶ 19. IV. The Massive Anticipated Volume of Records Responsive to Plaintiffs’ Request for
“All SCO Records” OIP and FBI are responsible for responding to FOIA requests for different, albeit related, portions of the SCO records collection. See Exh. A (Declaration of Vanessa Brinkmann ¶ 6 (Aug. 23, 2019) (hereinafter, “Brinkmann Decl.”)); Exh. B (Declaration of David Hardy ¶ 5 (Aug. 9, 2019) (hereinafter, “Hardy Decl.”)); SOF ¶¶ 20, 29. The FBI maintains the SCO investigative records in its Central Records System and is responsible for processing FOIA requests for SCO investigative records. Hardy Decl. ¶¶ 5, 11; see also Brinkmann Decl. ¶¶ 6, 10, 11; SOF ¶¶ 20, 21. The remainder of the SCO records collection is maintained by the DOJ Justice Management Division (“JMD”). Brinkmann Decl. ¶ 6; SOF ¶ 29. OIP is responsible for processing FOIA requests for the SCO records maintained by JMD. Brinkmann Decl. ¶¶ 6, 10; SOF ¶ 29. By any account, “[t]he volume of SCO records is massive.” Brinkmann Decl. ¶ 13; see also Hardy Decl. ¶ 24. JMD’s SCO records collection falls into three broad categories: (1) nonemail digital data electronic files, (2) email, and (3) paper files. Brinkmann Decl. ¶ 13; SOF ¶ 30. As to the first category, there are 11 terabytes of non-email digital data electronic files, which includes the electronic documents saved in various file formats. Brinkmann Decl. ¶¶ 13, 14; SOF ¶ 31. For conversion purposes, one terabyte is generally estimated to equal approximately 75 million pages. Brinkmann Decl. ¶ 18; SOF ¶ 32. Thus, the 11 terabytes of electronic files maintained by JMD potentially contains 825 million pages. Brinkmann Decl. ¶ 18; SOF ¶ 32.
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As to the second category, there are 383 gigabytes of email5 (including calendars created on Microsoft Outlook), which consists of the full email account for every person who worked within SCO (including attorneys, FBI agents, and other staff) at any point during the Office’s over two-year existence. Brinkmann Decl. ¶¶ 13, 15; SOF ¶ 33. One gigabyte of email files is generally estimated to equal approximately 677,963 pages. Brinkmann Decl. ¶ 18; SOF ¶ 34. Thus, the 383 gigabytes of email maintained by JMD potentially contains over 250 million pages. Brinkmann Decl. ¶ 18; SOF ¶ 34.
And as to the third category, there are approximately 180 boxes of paper records in the JMD portion of the collection. Brinkmann Decl. ¶¶ 13, 19; SOF ¶ 35. Although an accurate page count cannot be provided for the paper records until the compilation and scanning of the records in the boxes is complete, typically one records box contains approximately 2,000–2,250 pages. Brinkmann Decl. ¶ 19; SOF ¶ 36. For 180 boxes, this translates to approximately 360,000 to 405,000 pages. Brinkmann Decl. ¶ 19; SOF ¶ 36.
Combined, the records maintained by JMD may potentially contain over one billion pages. Brinkmann Decl. ¶ 20; SOF ¶ 37. That massive volume encompasses only the records that OIP would be responsible for processing. See Brinkmann Decl. ¶ 20; SOF ¶ 37. When the SCO investigative records that are within the FBI’s custody are included, these numbers balloon even further.
The FBI retains custody of the SCO files that are housed in its Central Records System (“CRS”) and accessed through its Sentinel system.6 Hardy Decl. ¶ 11; SOF ¶ 21. There are 45
5 The volume previously stated in the Joint Status Report was 318 GB. Joint Status Report at 6– 7, ECF No. 20. “Because of the addition of certain shared mailbox data to the email collection, this value is currently 383 GB.” Brinkmann Decl. ¶ 15 n.4; SOF ¶ 33 n.1. 6 As Mr. Hardy describes,
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SCO files maintained in the CRS. Hardy Decl. ¶ 11; SOF ¶ 22. The estimated volume of records in these 45 files is in excess of two million pages. Hardy Decl. ¶¶ 13, 14; SOF ¶ 23. This estimate does not include attachments embedded within the files. Hardy Decl. ¶¶ 14, 16; SOF ¶ 23.
In addition, the FBI has identified over 2,300 electronic media devices (e.g., CDs, DVDs, thumb drives, hard drives) containing various types of information, data, and documents. Hardy Decl. ¶ 15(b); SOF ¶ 24. Although the FBI has not yet been able to extract all of the data from these devices, the FBI has determined that these devices have a combined storage capacity of 240 terabytes of data. Hardy Decl. ¶¶ 15(b), 16; SOF ¶ 25. If these devices are filled to capacity, this is the approximate equivalent 18 billion pages. Hardy Decl. ¶ 15(b); SOF ¶ 26.
Finally, the FBI has custody of various “non-media items,” that may include, for example, handwritten notes, exhibits shown during interviews, and productions in response to subpoenas. Hardy Decl. ¶ 15; SOF ¶ 27. FBI estimates there are approximately 250,000 pages of “non-media items.” Hardy Decl. ¶ 15(a); SOF ¶ 27.
Neither OIP nor FBI have the resources to process this staggering volume of records. See Brinkmann Decl. ¶¶ 20–21; Hardy Decl. ¶ 25; SOF ¶¶ 28, 38. Simply put, it is impossible for OIP and FBI to process Plaintiffs’ request for “all SCO records.”
Sentinel is the FBI’s next generation case management system. After July 1, 2012, all FBI generated records are created electronically in case files via Sentinel. Sentinel is the portal used to access records maintained in the CRS, which is an extensive system of records consisting of applicant, investigative, intelligence, personnel, administrative, and general files compiled and maintained by the FBI in the course of fulfilling its integrated missions and functions as a law enforcement, counterterrorism, and intelligence agency to include performance of administrative and personnel functions. The CRS spans the entire FBI organization and encompasses the records of FBI Headquarters, FBI Field Offices, and FBI Legal Attaché Offices worldwide. Hardy Decl. ¶ 11 n.3.
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STANDARD OF REVIEW Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, “[a]fter the pleadings are closed[,] . . . a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). A motion for judgment on the pleadings is analyzed under the same standards as a motion to dismiss for failure to state a claim under Rule 12(b)(6). See Maniaci v. Georgetown Univ., 510 F. Supp. 2d 50, 58 (D.D.C. 2007). “Under Rule 12(c), the court must accept the nonmovant’s allegations as true and should view the facts in the light most favorable to the nonmovant.” Bowman v. District of Columbia, 562 F. Supp. 2d 30, 32 (D.D.C. 2008) (citing Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 7 (D.D.C. 1995)). “The court should grant a motion for judgment on the pleadings if the movant ‘is entitled to judgment as a matter of law.’” Id. (quoting Burns Int’l Sec. Servs. v. Int’l Union, 47 F.3d 14, 16 (2d Cir. 1995)).
ARGUMENT I. Plaintiffs’ Request for “All SCO Records” is Overbroad and Must Be Dismissed.
FOIA sets forth specific requirements for a valid request, including the requirement that a “request for records . . . reasonably describe[] such records.” 5 U.S.C. § 552(a)(3)(A) (emphasis added). Department of Justice regulations likewise require requesters to “describe the records sought in sufficient detail to enable Department personnel to locate them with a reasonable amount of effort.” 28 C.F.R. § 16.3(b). “[R]ecords are reasonably described if a professional employee of the agency familiar with the subject matter can locate the records with a reasonable amount of effort.” Freedom Watch, Inc. v. CIA, 895 F. Supp. 2d 221, 228 (D.D.C. 2012) (citation omitted); see also Truitt v. Dep’t of State, 897 F.2d 540, 545 n.36 (D.C. Cir. 1990).
“[T]he responsibility [is] firmly on the requester ‘to frame requests with sufficient particularity to ensure that searches are not unreasonably burdensome.’” Leopold v. Dep’t of Justice, 301 F. Supp. 3d 13, 23 (D.D.C. 2018) (quoting Assassination Archives & Research Ctr.,
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Inc. v. CIA, 720 F. Supp. 217, 219 (D.D.C. 1989), aff’d in pertinent part, No. 89-5414, 1990 WL 123924 (D.C. Cir. Aug. 13, 1990) (per curiam)); Freedom Watch, 895 F. Supp. 2d at 229. “Broad, sweeping requests lacking specificity are not sufficient.” Sack v. CIA, 53 F. Supp. 3d 154, 163 (D.D.C. 2014) (quoting Dale v. IRS, 238 F. Supp. 2d 99, 104 (D.D.C. 2002)); see also Marks v. Dep’t of Justice, 578 F.2d 261, 263 (9th Cir. 1978) (stating that courts have “held that broad, sweeping requests lacking specificity are not permissible” (citing Mason v. Callaway, 554 F.2d 129 (4th Cir. 1977); Irons v. Schuyler, 465 F.2d 608 (D.C. Cir. 1972); Fonda v. CIA, 434 F. Supp. 498 (D.D.C. 1977)).
Overbroad and unreasonably burdensome requests are invalid because FOIA was not intended to allow requesters to conduct a “fishing expedition” through agency files. Dale, 238 F. Supp. 2d at 104–05. Indeed, “there are limits to the lengths to which an agency must go in responding to a FOIA request.” Schrecker v. Dep’t of Justice, 349 F.3d 657, 664 (D.C. Cir. 2003); Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 891–92 (D.C. Cir. 1995). This limitation protects the ability of federal agencies to prioritize their resources notwithstanding any obligation to provide access to records under FOIA. See, e.g., Int’l Counsel Bureau v. Dep’t of Defense, 723 F. Supp. 2d 54, 59–60 (D.D.C. 2010).
The D.C. Circuit has repeatedly recognized that “[a]n agency need not honor a request that requires an unreasonably burdensome search.” Am. Fed’n of Gov’t Emps., Local 2782, 907 F.2d at 209 (citation omitted); Judicial Watch, Inc. v. Dep’t of State, 681 F. App’x 2, 4 (D.C. Cir. 2017) (“[A]n agency need not respond to overly broad and unreasonably burdensome requests.”); PatinoRestrepo v. Dep’t of Justice, No. 17-5143, 2019 WL 1250497, at *1 (D.C. Cir. 2019), cert filed, No. 18-9651 (June 13, 2019); Nation Magazine, 71 F.3d at 891–92; see also Dixon v. U.S. Dep’t of Justice, 279 F. Supp. 3d 1, 5–6 (D.D.C. 2017), aff’d, 2018 WL 4610736 (D.C. Cir. Sept. 10,
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2018); Freedom Watch, 895 F. Supp. 2d at 228; Freedom Watch, 925 F. Supp. 2d at 62–63 (dismissing complaint where overbroad requests were “infirm from the beginning” regardless of defendants’ response to the requests); Int’l Counsel Bureau, 723 F. Supp. 2d at 59 (citing Pub. Citizen, Inc. v. Dep’t of Educ., 292 F. Supp. 2d 1, 6 (D.D.C. 2003)). Indeed, courts have routinely found FOIA requests to be invalid when they “would require the agency to locate, review, redact, and arrange for inspection a vast quantity of material.” Am. Fed’n of Gov’t Emps., 907 F.2d at 209; Freedom Watch, 895 F. Supp. 2d at 229; Sack, 53 F. Supp. 3d at 163; see also Guance v. Burnett, 849 F.2d 1475 (9th Cir. 1988) (unpublished) (rejecting as invalid a plaintiff’s FOIA request for “every scrap of paper wherever located in the agency which related to her activity in the world of aviation”) (citation omitted).
Plaintiffs’ request for “[a]ll documents and records collected, maintained and stored by the Office of Special Counsel Robert Mueller since May 17, 2017,” Answer, Exh. G, ECF No. 14-7; SOF ¶ 9, is overbroad and would place an unreasonable burden on the Department of Justice. As is apparent from the OIP and FBI declarations, processing Plaintiffs’ requests for all the records from the Special Counsel’s Office would require the Department to review and redact a vast quantity of material. Indeed, of the non-investigative files, there are 11 terabytes of non-email digital data electronic files; 383 gigabytes of email; and 180 boxes of paper files. Brinkmann Decl. ¶¶ 13–20; SOF ¶¶ 30–36. Using conversions from terabytes, gigabytes, and boxes to pages, all of the non-investigative files maintained by JMD potentially contain more than one billion pages. See Brinkmann Decl. ¶ 20; SOF ¶ 37. And of the investigative files, the current estimated volume of potentially responsive records is 2,144,415 to 2,250,000 pages, plus the attachments in files and the contents of the 2,300 electronic devices. Hardy Decl. ¶¶ 15, 16; SOF ¶ 23. If the 2,300 electronic devices are filled to capacity, they could contain more than 18 billion pages. Hardy
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Decl. ¶ 15; SOF ¶ 26. Congress simply did not contemplate agencies processing such a staggering volume of records in response to a FOIA request. See Am. Fed’n of Gov’t Emps., 907 F.2d at 209.
Even aside from those staggering numbers, Plaintiffs’ request is overbroad on its face. Plaintiffs request every record from the Special Counsel’s Office during its entire existence. See Answer, Exh. G, ECF No. 14-7; SOF ¶ 9. The Office was staffed with 127 prosecutors, FBI agents, and professional staff. Brinkmann Decl. ¶ 12; SOF ¶ 1. These individuals conducted a sweeping national security and criminal investigation into election interference efforts emanating from Russia and matters that arose from that investigation. See Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters, https://www.justice.gov/opa/press-release/file/967231/download; SOF ¶ 2. In doing so, the Office investigated and prosecuted numerous individuals and entities over a nearly two-year timeframe. SOF ¶ 3. The Special Counsel’s Office’s work culminated in a 448-page report to the Attorney General pursuant to 28 C.F.R. § 600.8(c). See Report On The Investigation Into Russian Interference In The 2016 Presidential Election, https://www.justice.gov/storage/report.pdf; SOF ¶ 4. Given the number of its employees, its nearly two-year existence, and the scope of its work, a request for all records from the Special Counsel’s Office is plainly overbroad.
Plaintiffs’ request for all SCO records is broader than other FOIA requests that courts have found to pose an unreasonable burden on an agency. For example, in American Federation of Government Employees, the D.C. Circuit found that the plaintiffs’ requests were overbroad because they “would require the [Census] Bureau to locate every chronological office file and correspondent file, internal and external, for every branch office, staff office, [etc.].” 907 F.2d at 208 (citation omitted). Significantly, the D.C. Circuit determined that although the requests
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“identify the documents requested with sufficient precision to enable the agency to identify them[,] . . . it is clear that these requests are so broad as to impose an unreasonable burden upon the agency.” Id. at 209. Similarly, in Judicial Watch, the D.C. Circuit determined that a request to the State Department seeking all documents that identify any officials who used private email accounts to conduct official business was overbroad and unduly burdensome. 681 F. App’x at 4– 5. The Court reasoned that “[r]esponding to such a request would have required State to conduct an extensive review of any and all documents referencing a non-state.gov email address in all existing State Department records” and concluded that the “FOIA does not require State to perform such an overly broad and unduly burdensome search.” Id. at 5 (citing Church of Scientology of Cal. v. IRS, 792 F.2d 146, 151 (D.C. Cir. 1986)). Likewise, in Nation Magazine, the D.C. Circuit found that the plaintiffs’ request that Customs “search through 23 years of unindexed files for records pertaining to [Ross] Perot . . . would impose an unreasonable burden on the agency.” 71 F.3d at 892. If the requests at issue in American Federation of Government Employees, Judicial Watch, and Nation Magazine were overbroad, it is axiomatic that Plaintiffs’ request for all SCO records is overbroad as well.
By any measure, Plaintiffs’ request for all SCO records would require Defendant to process a vast quantity of material. Such a request would impose an unreasonable burden on Defendant, and fails to constitute a valid request under FOIA. See Freedom Watch, 925 F. Supp. 2d at 61– 63; Freedom Watch, 895 F. Supp. 2d at 228–29. Therefore, the Court should dismiss Plaintiffs’ request for all SCO records from the Complaint. II. Plaintiffs’ Request for All Records “Used By” the Special Counsel’s Office “During
the Drafting and Preparation of” the Mueller Report is Impermissibly Vague and Must be Dismissed. It is also “the requestor’s responsibility to frame requests with sufficient particularity . . . to enable the searching agency to determine precisely what records are being requested.”
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Assassination Archives, 720 F. Supp. at 219; Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996) (“A request reasonably describes records if the agency is able to determine precisely what records are being requested.” (citation omitted)); Freedom Watch, 895 F. Supp. 2d at 229. “The linchpin inquiry is whether the agency is able to determine precisely what records [are] being requested.” Assassination Archives, 720 F. Supp. at 219 (quoting Yeager v. Drug Enf’t Admin., 678 F.2d 315, 326 (D.C. Cir. 1982)). “The rationale for this rule is that FOIA was not intended to reduce government agencies to full-time investigators on behalf of requesters.” Id.
Thus, courts have routinely rejected requests seeking vast amounts of material described in broad terms. See, e.g., Sack, 53 F. Supp. 3d at 160 (concluding that agency was not required to conduct a search for a request for all records that “pertain[ ] in whole or in part (all years, all classifications)” to a list of closed Inspector General reports because it lacked clarity and was overbroad); Moore v. FBI, 883 F. Supp. 2d 155, 163 (D.D.C. 2012) (finding that a request for “information to make easier to locate consciousness-altering technology, or behavioral modification techniques, information regarding the program” was “not reasonably descriptive to trigger the CIA’s disclosure obligations”); Dale, 238 F. Supp. 2d at 104 (holding that a request for “any and all documents, including but not limited to files, that refer or relate in any way to” the plaintiff “amounted to an all-encompassing fishing expedition of files at IRS offices across the country,” warranting dismissal); Judicial Watch, Inc., v. Exp.-Imp. Bank, 108 F. Supp. 2d 19, 26– 28 (D.D.C. 2000) (concluding that FOIA request for all records pertaining to two individuals and the “companies, entities, and/or persons related or doing or conducting business with the People’s Republic of China” did not “reasonably describe the records sought,” was “unreasonably broad and impose[d] an unreasonable burden” on the agency); see also Massachusetts v. Dep’t of Health & Human Servs., 727 F. Supp. 35, 36 n.2 (D. Mass. 1989) (noting that a “request for all documents
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‘relating to’ a subject . . . unfairly places the onus of non-production on the recipient of the request and not where it belongs—upon the person who drafted such a sloppy request”).
In this case, Plaintiffs’ request for “any and all records” “used by” the Special Counsel’s Office in the “drafting and preparation of” of the Mueller Report fails on its face to reasonably describe the records sought and would require the Department of Justice to conduct an unreasonably burdensome search. The request did not provide any criterion by which to determine what records were “used by” the Special Counsel’s Office during the “drafting or preparation of” the 448-page Report. See Answer, Exh. A (FOIA request), ECF No. 14-1; SOF ¶ 7. DOJ counsel proposed that the request be narrowed to material cited in the Report that is not in the public domain—which, given the number of documents cited in the Report, would be a large volume— but Plaintiffs rejected that proposal and refused to provide their own proposal for narrowing the request. Exh. D at 1–3; SOF ¶¶ 16, 18, 19.
“The difficulties in such an open-ended search are apparent,” Fonda, 434 F. Supp. at 501, as the “lack of clarity leaves the agency to guess at the [P]laintiffs’ intent,” Sack, 53 F. Supp. 3d at 164. Plaintiffs’ request could plausibly be read to include any record that any individual at the Special Counsel’s Office may have had in mind when working in any manner on the Report. If interpreted in that manner, in its search for responsive records the Department would first have to ascertain the identities of every individual who had any involvement in the “drafting” and “preparation of” the 448-page Report. The Special Counsel’s Office is now closed, and some of these individuals have left the Government. Brinkmann Decl. ¶ 6; SOF ¶¶ 5, 6. The Department would then have to ask every individual who worked on the Report to attempt to recall every record that they may have consulted, referenced, or even had in mind when working on the Report. Read
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this way, that request “borders on the ‘all-encompassing fishing expedition’ on which a FOIA requester cannot embark.” Sack, 53 F. Supp. 3d at 164 (quoting Dale, 238 F. Supp. 2d at 104–05).
To search for records that were “used by” the Special Counsel’s Office during the “drafting and preparation of” the Mueller Report would require an unduly burdensome investigation by the agency. In this way, Plaintiffs’ request is similar to those at issue in Judicial Watch. In that case, the plaintiff sought all records pertaining to contacts between certain individuals and “companies, entities, and/or persons related or doing or conducting business in any way with the People’s Republic of China.” 108 F. Supp. 2d at 26. The district court upheld the agency’s refusal to conduct a search for responsive records, finding that “[t]he FOIA does not require the Bank to investigate which companies having contacts with [two individuals] may have had dealings with China and to locate all documents relating to contacts between [those individuals] and those companies.” Id. at 28. Likewise, in Freedom Watch, the plaintiff submitted various FOIA requests seeking records about “leaked” information. 895 F. Supp. 2d at 229. The district court found that the request “would impermissibly require defendants to undertake an investigation” before defendants could determine whether certain records related to “leaks.” Id.
Plaintiffs’ request for “any and all records” “used by” the Special Counsel’s Office during the “drafting and preparation of” the Mueller Report simply is not an adequate description because a professional DOJ employee will not be able to locate responsive records with a reasonable amount of effort. Judicial Watch, 108 F. Supp. 2d at 27. Like the requests at issue in Judicial Watch and Freedom Watch, the effort required to locate responsive records to Plaintiffs’ request would be an undue burden on the Department. Therefore, Plaintiffs’ request is not valid, and the Court should dismiss it from the Complaint.
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CONCLUSION For the foregoing reasons, the Court should dismiss Request Nos. DOJ-2019-003143 and DOJ-2019-003098 from the Complaint and enter partial judgment on the pleadings for Defendant.

Dated: August 27, 2019

Respectfully submitted,
HASHIM MOOPPAN Deputy Assistant Attorney General Civil Division
ELIZABETH J. SHAPIRO Deputy Director Federal Programs Branch
/s/ Courtney D. Enlow COURTNEY D. ENLOW (N.C. Bar No. 46578) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W. Room 12102 Washington, D.C. 20005 Tel: (202) 616-8467 Email: courtney.d.enlow@usdoj.gov
Counsel for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on August 27, 2019, I electronically transmitted the foregoing to the parties and the clerk of court for the United States District Court for the District of Columbia using the CM/ECF filing system.
/s/ Courtney D. Enlow COURTNEY D. ENLOW Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W. Room 12102 Washington, D.C. 20005 Tel: (202) 616-8467 Email: courtney.d.enlow@usdoj.gov
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 Case 1:19-cv-01278-RBW Document 33 Filed 10/03/19 Page 1 of 3

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

)

JASON LEOPOLD and

)

BUZZFEED, INC.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 19-1278 (RBW)

)

UNITED STATES DEPARTMENT OF

)

JUSTICE, et al.,

)

)

Defendants.

)

_______________________________________)

)

CABLE NEWS NETWORK,

)

)

Plaintiff,

)

)

v.

)

Civil Action No. 19-1626 (RBW)

)

FEDERAL BUREAU OF INVESTIGATION, )

)

Defendant.

)

_______________________________________)

ORDER

In accordance with the Court’s oral rulings issued at the status conference held on

October 1, 2019, it is hereby

ORDERED that the Defendant’s Renewed Motion for Consolidation, Civ. Action No.

19-1278, ECF No. 27, is GRANTED. It is further

ORDERED that, to the extent that the plaintiffs in the above-captioned matters are

seeking the release of FD-302 forms created by the Federal Bureau of Investigation (the “FBI”)

in relation to Special Counsel Mueller’s investigation into Russian interference in the 2016

Case 1:19-cv-01278-RBW Document 33 Filed 10/03/19 Page 2 of 3
United States presidential election, Civil Action No. 19-1278 is CONSOLIDATED with Civil Action No. 19-1626. It is further
ORDERED that the parties shall make all future filings only in Civil Action No. 191278, and the Clerk of the Court shall refuse to accept any filings in Civil Action No. 19-1626. It is further
ORDERED that, until otherwise ordered by the Court, the United States Department of Justice (the “Department”) shall, every month, process at least five hundred (500) pages of records responsive to the plaintiffs’ request for FBI FD-302 forms (unless fewer than five hundred (500) pages remain, in which case the remaining balance shall be processed) and produce to the plaintiffs, on the 1st day of every month (or on the next business day if the 1st is a not a business day), the non-exempt portions of all responsive records. The Department shall process the records discovered by its searches by reviewing each record for responsiveness and redacting or withholding information subject to an applicable exemption under the Freedom of Information Act (“FOIA”). It is further
ORDERED that, on or before November 1, 2019, the Department shall make its first production to the plaintiffs of non-exempt portions of records responsive to the plaintiffs’ request for FBI FD-302 forms. It is further
ORDERED that the parties shall appear for a status conference on November 13, 2019, at 9:30 a.m. The Department shall be prepared to indicate to the Court the following: (1) the number of individuals in each of the several components of the Department processing documents responsive to requests made pursuant to the FOIA; (2) the total number of cases brought pursuant to the FOIA against the Department pending before other members of this Court and other federal district courts that are also being processed by the components of the
2

Case 1:19-cv-01278-RBW Document 33 Filed 10/03/19 Page 3 of 3 Department that are also processing the FOIA requests made by the plaintiffs in the abovecaptioned matters; and (3) the steps, if any, taken by the Department to request additional funding from Congress for the purpose of hiring additional personnel to assist in the processing of documents responsive to FOIA requests.
SO ORDERED this 3rd day of October, 2019. REGGIE B. WALTON United States District Judge
3

 
 Case 1:19-cv-01278-RBW Document 39 Filed 11/19/19 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

)

JASON LEOPOLD and

)

BUZZFEED, INC.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 19-1278 (RBW)

)

UNITED STATES DEPARTMENT OF

)

JUSTICE, et al.,

)

)

Defendants.

)

_______________________________________)

)

CABLE NEWS NETWORK,

)

)

Plaintiff,

)

)

v.

)

Civil Action No. 19-1626 (RBW)

)

FEDERAL BUREAU OF INVESTIGATION, )

)

Defendant.

)

_______________________________________)

ORDER

In accordance with the Court’s oral rulings issued at the status conference held on

November 13, 2019, it is hereby

ORDERED that, beginning on December 2, 2019, the United States Department of

Justice (the “Department”) shall prioritize its processing and production of the FBI FD-302

forms requested by the plaintiffs, until otherwise ordered by the Court.1 It is further

ORDERED that, on or before November 20, 2019, the Department shall file a

submission with the Court, indicating the number of pages that it has produced to the United

1 The Court will address the processing and production of FBI FD-302-related records at a later date.

Case 1:19-cv-01278-RBW Document 39 Filed 11/19/19 Page 2 of 2 States House Committee on the Judiciary (the “House Judiciary Committee”) in response to the House Judiciary Committee’s subpoena for FBI FD-302 forms. It is further
ORDERED that the status conference currently scheduled for November 25, 2019, at 2:00 p.m. is CONTINUED to 2:30 p.m. on that same date.
SO ORDERED this 19th day of November, 2019. REGGIE B. WALTON United States District Judge
2

 
 Case 1:19-cv-01278-RBW Document 47 Filed 11/28/19 Page 1 of 4

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

)

JASON LEOPOLD and

)

BUZZFEED, INC.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 19-1278 (RBW)

)

UNITED STATES DEPARTMENT OF

)

JUSTICE, et al.,

)

)

Defendants.

)

_______________________________________)

)

CABLE NEWS NETWORK,

)

)

Plaintiff,

)

)

v.

)

Civil Action No. 19-1626 (RBW)

)

FEDERAL BUREAU OF INVESTIGATION, )

)

Defendant.

)

_______________________________________)

ORDER

In accordance with the oral rulings issued by the Court at the status conference held on

November 25, 2019, it is hereby

ORDERED that, on or before December 2, 2019, the United States Department of

Justice (the “Department”) shall produce to Jason Leopold and Buzzfeed, Inc. (collectively, the

“Leopold plaintiffs”) and Cable News Network (“CNN”) the FD-302 forms, including any

handwritten notes and attachments to the typewritten narrative, created by the Federal Bureau of

Case 1:19-cv-01278-RBW Document 47 Filed 11/28/19 Page 2 of 4
Investigation (the “FBI”), in accordance with the terms of the Court's October 3, 2019 Order, ECF No. 33.1 It is further
ORDERED that the Plaintiffs’ Combined Motion for Preliminary Injunction and Memo in Support, ECF No. 43, is GRANTED IN PART AND DENIED WITHOUT PREJUDICE IN PART. It is GRANTED to the extent that it seeks the processing and production of the Leopold plaintiffs’ request for the summaries of the report regarding Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 United States presidential election (the “Mueller Report”) prepared by the Office of Special Counsel Mueller (“Special Counsel Mueller’s Office”).2 It is DENIED WITHOUT PREJUDICE in all other respects. It is further
ORDERED that Plaintiffs Leopold’s and Buzzfeed’s Motion to Reconsider Stay, ECF No. 44, is GRANTED IN PART AND DENIED WITHOUT PREJUDICE IN PART. It is GRANTED to the extent that it seeks the processing and production of the Leopold plaintiffs’ request for the summaries of the Mueller Report prepared by Special Counsel Mueller’s Office. It is DENIED WITHOUT PREJUDICE in all other respects. It is further
ORDERED that, until otherwise ordered by the Court, the Department shall, on a monthly basis, process at least five hundred (500) pages of records responsive to the Leopold
1 The Department shall ensure that all productions made pursuant to this Order are delivered to the appropriate plaintiffs by the close of business on the date of production. 2 The Leopold plaintiffs’ FOIA request for the summaries of the Mueller Report encompasses the following:
1. Any and all summaries of the final Mueller report written/drafted by investigators/prosecutors/attorneys working on Special Counsel Robert Mueller's investigation into any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump. 2. Any reports or documents that summarized Special Counsel Robert Mueller's final report into any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump. These summaries could have been written by any individual working on Special Counsel Robert Mueller's investigation. Complaint ¶ 25, Leopold v. U.S. Dep’t of Justice, Civ. Action No. 19-1278.
2

Case 1:19-cv-01278-RBW Document 47 Filed 11/28/19 Page 3 of 4
plaintiffs’ request for the summaries of the Mueller Report prepared by Special Counsel Mueller’s Office (unless fewer than five hundred (500) pages remain, in which case the remaining balance shall be processed) and produce to the Leopold plaintiffs, on or before January 3, 2020, and thereafter on the first day of every month (or on the next business day if the first is not a business day or is a holiday) until production has been completed, the non-exempt portions of these records. It is further
ORDERED that the Department shall process the 750 pages of the typewritten narratives of FBI FD-302 forms that the Department made available to the United States House Committee on the Judiciary (the “House Judiciary Committee”) and the United States House Permanent Select Committee on Intelligence (the “House Intelligence Committee”) and produce to the Leopold plaintiffs and CNN, on or before January 2, 2020, the non-exempt portions of these records. It is further
ORDERED that the Department shall produce to the Leopold plaintiffs and CNN, on or before January 3, 2020, a list of all of the individuals who were interviewed by the FBI in relation to Special Counsel Mueller’s investigation into Russian interference in the 2016 United States presidential election and for whom a FD-302 form was created. The list shall include the total volume of the typewritten narratives associated with these individuals’ FD-302 forms. It is further
ORDERED that the parties shall appear before the Court for a status conference on January 8, 2020, at 11:30 a.m.
3

Case 1:19-cv-01278-RBW Document 47 Filed 11/28/19 Page 4 of 4 SO ORDERED this 28th day of November, 2019.3
REGGIE B. WALTON United States District Judge
3 The Court notes that the Department’s processing and production obligations set forth in this Order supersede the obligations set forth in the Court’s prior Orders in this case.
4

 
 Case 1:19-cv-01278-RBW Document 49 Filed 12/16/19 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

)

JASON LEOPOLD and

)

BUZZFEED, INC.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 19-1278 (RBW)

)

UNITED STATES DEPARTMENT OF

)

JUSTICE, et al.,

)

)

Defendants.

)

_______________________________________)

)

CABLE NEWS NETWORK,

)

)

Plaintiff,

)

)

v.

)

Civil Action No. 19-1626 (RBW)

)

FEDERAL BUREAU OF INVESTIGATION, )

)

Defendant.

)

_______________________________________)

ORDER

Upon consideration of the Defendant’s Motion for Extension of Time and Request for

Expedited Ruling, it is hereby

ORDERED that the Defendant’s Motion for Extension of Time and Request for

Expedited Ruling, ECF No. 48, is GRANTED IN PART AND DENIED IN PART. The

motion is GRANTED to the extent that it seeks (1) an extension of time for the United States

Department of Justice (the “Department”) to complete its production of the typewritten

narratives of the FD-302s made available to the United States House Committee on the Judiciary

(the “House Judiciary Committee”) and the United States House Permanent Select Committee on

Case 1:19-cv-01278-RBW Document 49 Filed 12/16/19 Page 2 of 2
Intelligence (the “House Intelligence Committee”) and (2) clarification regarding the scope of the Department’s February 1, 2020 production. The motion is DENIED in all other respects. It is further
ORDERED that the Court’s November 28, 2019 Order, ECF No. 47, is MODIFIED as follows:
1. The Department shall, on or before January 2, 2020, process and produce to Jason Leopold and Buzzfeed, Inc. (the “Leopold plaintiffs”) and Cable News Network (“CNN”) the non-exempt portions of at least 430 pages of the typewritten narratives of the FD-302s that were made available to the House Judiciary Committee and the House Intelligence Committee.
2. The Department shall, on or before January 17, 2020, process and produce to the Leopold plaintiffs and CNN the non-exempt portions of the remaining 227 pages of the typewritten narratives of the FD-302s that were made available to the House Judiciary Committee and the House Intelligence Committee.
3. The Department shall, on or before February 1, 2020, process and produce to the Leopold plaintiffs and CNN 500 pages of the typewritten narratives of the FD-302s referenced in the report regarding Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 United States presidential election.
The Court’s November 28, 2019 Order, ECF No. 47, otherwise remains in effect. SO ORDERED this 16th day of December, 2019.
REGGIE B. WALTON United States District Judge
2

 
 Case 1:19-cv-01278-RBW Document 50 Filed 01/07/20 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JASON LEOPOLD and BUZZFEED, INC.,
Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, et al.
Defendants.
CABLE NEWS NETWORK, INC., Plaintiff,
v. FEDERAL BUREAU OF INVESTIGATION,
Defendant.

Case No: 1:19-cv-01278-RBW

PLAINTIFFS JASON LEOPOLD’S, BUZZFEED, INC.’S AND CABLE NEWS NETWORK, INC.’S STATUS REPORT FOR THE COURT AND RESPONSE TO
DOJ’S JANUARY 2, 2020 AND JANUARY 3, 2020 PRODUCTIONS
Plaintiffs Jason Leopold, BuzzFeed, Inc. and Cable News Network, Inc. (“CNN”),
through counsel, hereby file this report to update the Court on the status of their Freedom of
Information Act (“FOIA”) claims and in response to the Department of Justice’s (“DOJ”)
January 2, 2020 and January 3, 2020 productions.
I. DOJ’S PRODUCTIONS ARE INCONSISTENT IN THEIR SUBSTANCE AND PACE
Pursuant to this Court’s Orders, see Dkts. 47 and 49, DOJ at the end of last week
produced (1) the non-exempt portions of 430 pages of the typewritten narratives of the FD-302s

Case 1:19-cv-01278-RBW Document 50 Filed 01/07/20 Page 2 of 11
that were previously made available to the House Judiciary Committee and the House Permanent Select Committee on Intelligence, and (2) the list of individuals interviewed by the Federal Bureau of Investigation (“FBI”) in relation to Special Counsel Robert Mueller’s investigation. After reviewing these materials over the weekend, Plaintiffs remain concerned with the pace of production and the substance of the information DOJ has withheld.
DOJ’s production continues at a pace unacceptable in light of the extreme public interest in these records given the ongoing Congressional investigations into the President, including the impeachment proceedings, and the approaching Presidential election. And in the documents it has released, DOJ redacted information that the government already has made public. Rather than adhering to any production standard the Court and the public should expect from a “reasonable agency” – a standard another court recently adopted, see infra Section II – DOJ’s sluggish productions have forced the Court’s repeated intervention as the government’s haphazard productions continue.
For example, DOJ withheld from its January 3 list of individuals the following information:
1. Names of 30 witnesses whose meetings with the Special Counsel’s office have been documented by CNN and other news outlets, including: Maria Butina, who pleaded guilty last year to conspiring to act as an unregistered Russian agent; Randy Credico, who testified at Roger Stone’s trial and is known to have met with investigators at least twice and provided grand jury testimony in September 2018; Sam Nunberg, a former Trump campaign aide, who told CNN he met with investigators for close to five and a half hours; Tony Fabrizio, a pollster for the 2016 Trump campaign who did political work in Ukraine with Paul Manafort; and James Woolsey, a former CIA Director;
2. Names of at least two witnesses who testified for the prosecution at the Paul Manafort criminal trial who are known to have met with the Special Counsel’s office in preparation for the trial: Cindy LaPorta and Philip Ayliff; and
3. Names of at least four individuals for whom DOJ produced their 302s on January 2, including Kathleen Troia “K.T.” McFarland, Ted Malloch, and John Mashburn.
2

Case 1:19-cv-01278-RBW Document 50 Filed 01/07/20 Page 3 of 11
While Plaintiffs are still in the process of comparing information in the 302s against information cited in the Mueller Report, in at least one case, DOJ redacted information from a 302 that is explicitly cited in the Mueller Report. See Mueller Report at 65, n.409 (“Miller said he did not want Priebus to be blindsided, so on Sunday night he called Priebus to tell him that the President had been thinking about the ‘Comey situation’ and there would be an important discussion on Monday,” quoting Steven Miller’s 10/31/2017 302 at page 7:); cf. Interview of Stephen Miller, 10/31/2017, at 7 (Ex. A) (redacted almost entirely pursuant to b(5); Priebus’s name is not even visible).
In addition to reinforcing Plaintiffs’ concerns about DOJ’s pace and inconsistency, the government continues to withhold large swaths of information on the basis of FOIA exemption b(5) as to documents where that exemption clearly has no application.
Plaintiffs cannot overstate the importance to the American public of the information they seek. With the 2020 Presidential Election now fewer than ten months away, and Congress presently engaged in historic proceedings involving the impeachment of the President, time is of the essence. Strong judicial enforcement of the Freedom of Information Act has never been more critical. Therefore, and for the reasons set forth in this filing, Plaintiffs respectfully request that, beginning with the March 1, 2020 production deadline, this Court order DOJ and FBI to process materials responsive to Plaintiffs’ requests for FBI FD-302 reports at a rate of 1,000 pages per month and in accordance with the priority lists provided by Plaintiffs at Exhibit B. Further, Plaintiffs each plan to move this Court for partial summary judgment on the issue of the b(5) withholdings and request that the Court order an abbreviated briefing schedule and set a hearing to take place by mid-March 2020.
3

Case 1:19-cv-01278-RBW Document 50 Filed 01/07/20 Page 4 of 11
II. DOJ SHOULD PROCESS 1,000 PAGES OF RESPONSIVE MATERIALS PER MONTH
To guide the Court and the parties in this instance and in the future, Plaintiffs respectfully submit that this Court should adopt the “reasonable agency” standard recently adopted in the Southern District of New York. Under that standard, DOJ should be able to produce at least 1,000 pages of typewritten FD-302 narrative reports per month. That production schedule would satisfy the goal this Court and Plaintiffs have all agreed on at previous hearings: getting crucially important government records into the public’s hands as expeditiously as possible.
According to DOJ’s January 3 list of interviews, there are more than 1,000 total typewritten 302 reports totaling more than 5,000 pages.1 To date, Plaintiffs have received only 63 of these reports; or, stated in reverse, DOJ has yet to process and produce nearly 1,000 reports, totaling at least 4,700 pages.2
At the current court-ordered rate of 500 pages per month, DOJ would not complete the processing the 302 reports until November 2, 2020 – one day before the Presidential election. In contrast, at a rate of 1,000 pages per month, DOJ would complete the processing and production of these reports as of its July 1, 2020 production.
Increasing the production rate is further necessary because of the limited utility of the list of interviews produced by DOJ. See Exhibit C. Out of the more than 1,000 total 302 reports, DOJ redacted the names associated with approximately two-thirds of these reports. DOJ said,
1 These figures represent, to the best of Plaintiffs’ ability, an accurate accounting of the responsive 302s. DOJ provided the heavily redacted list in PDF format, which required converting the file to an Excel spreadsheet.
2 While these figures show that DOJ has yet to process more than 90% of the 302 reports, these figures do not even account for the related materials, which, for the time being, Plaintiffs have agreed are of lesser priority. Adding in those materials to this tally, DOJ has almost certainly processed less than one percent of responsive materials to-date.
4

Case 1:19-cv-01278-RBW Document 50 Filed 01/07/20 Page 5 of 11
generally, that names were redacted due to “FBI’s pending operational sensitivities,” the potential to reveal grand jury information, and individuals’ privacy interests. See Email from C. Enlow to C. Tobin, et al., Jan. 3, 2020 (Attached as Exhibit D). Further, DOJ said it is “not feasible to determine whether some of the redactions may be lifted” until processing of the reports is complete. Id.
Setting aside the dubious relation of these excuses to any legitimate FOIA exemptions, increasing the rate of production will allow DOJ to more quickly make its determinations and release the maximum amount of information to the public. Although Plaintiffs have, in accordance with this Court’s instructions, prioritized the 302s for which the names were disclosed, see Exhibit B, it may be that many of the “mystery” reports are themselves of more interest and importance. Given that DOJ has said it cannot disclose names until it processes the individual reports, there is an even greater urgency in pushing DOJ to complete its processing.3
The “Reasonable Agency” Standard As the Court has said, the government’s representations regarding the limitations on its capacity to process FOIA requests present a frustrating obstacle in meeting the requirements of FOIA. Plaintiffs respectfully suggest that this Court should deploy a legal standard: agencies should be required to process – not what an agency at a given moment tells the Court it can accommodate – but instead the rate a reasonable agency in today’s technological environment should be able to meet. The Southern District of New York recently employed this standard, ordering agencies to produce documents responsive to a FOIA request based “on a reasonable agency’s technological
3 Completing production of the 302 reports also may allow Plaintiffs to narrow the scope of related materials they seek, leading to a more efficient resolution of this action.
5

Case 1:19-cv-01278-RBW Document 50 Filed 01/07/20 Page 6 of 11
capability.” Open Soc’y Justice Initiative v. CIA, 399 F. Supp. 3d 161, 169 (S.D.N.Y. 2019). The Open Society litigation involves FOIA requests to the Department of Defense (“DOD”) and Department of State (“State”) for records relevant to the killing of U.S.-based journalist Jamal Khashoggi in a Saudi Arabian consulate in Turkey. Id. at 162. Although both agencies asked the court to order a processing rate of 300 pages per month, claiming their limited resources were stretched thin because of a large number of pending FOIA requests, the court ordered both agencies to process 5,000 pages of responsive records each month. Id. at 165-66, 168-69. The agencies cautioned that a faster rate of production would require them to divert resources from other pending FOIA requests, id. at 166, which the court took into account in denying the government’s motion to reconsider its order, id. at 169.
In explaining its decision, the Open Society court reiterated its “inquiry must focus on a reasonable agency’s technological capability.” Id. (emphasis added). Therefore, the court said that it was appropriate to hold DOD to the standard of a “reasonable agency,” “even if meeting this demand calls upon DOD to augment, temporarily or permanently, its review resources, human and/or technological.” Id.4 Significantly, the court also noted that State had complied with its order to process 5,000 pages per month. Id. at 165.
In this action, DOJ represented to the Court that it is only able to process 500 pages per month for largely the same reasons as those argued by DOD and State. DOJ has shown in this litigation that it is capable of processing 1,000 pages per month, as it did so while processing 500
4 This Court at the November 25, 2019 hearing queried whether the Open Society court considered the full breadth of FOIA litigation faced by the agencies in making its determination. It did. In its submission to the court seeking 300 pages per month, State provided a complete list of all FOIA litigations it was engaged in and processing materials in response to, including dozens of cases before this Court and others in this district. See Exhibit 1, May 14, 2019, Case No. 1:19-cv-01329-PAE, Dkt. 30-2.
6

Case 1:19-cv-01278-RBW Document 50 Filed 01/07/20 Page 7 of 11
pages per month of FD-302 records at the same time as processing 500 pages per month of Plaintiffs Jason Leopold’s and BuzzFeed’s expedited request for other records. Plaintiffs respectfully urge the Court to enforce the terms of FOIA and increase the rate at which DOJ is processing 302 records to 1,000 pages per month based on what a “reasonable agency” could accomplish.5
As the Open Society case illustrates, imposing the “reasonable agency” standard can serve the goals of FOIA without either overburdening government agencies or excusing their lack of investments in the capacity to meet their statutory obligations. Moreover, if DOJ can show that it is incapable of meeting the faster rate, this Court can revisit the issue in the future.
Priorities for Production of 302 Reports Plaintiffs believe that the Court’s order to DOJ to focus first on providing those 302 reports provided to congressional committees has helped streamline the process to the benefit of all interested parties and the public. To that end, Plaintiffs respectfully request that the Court order DOJ to process the remaining typewritten 302 reports beginning with reports for the witnesses as detailed by CNN and Leopold and BuzzFeed, respectively, in Exhibit B. The witnesses on these lists are those listed by name in the DOJ’s latest production; CNN, for example, prioritizes 302s from witnesses who were cited in Volume II of the Mueller Report regarding the President’s actions and potential obstruction of justice. With the exception of Don McGahn, who is of particular interest given the ongoing litigation concerning his potential
5 DOD told the court that it was devoting 25 percent of its FOIA processing resources to the request, and State told the court it had diverted five employees to the request and was devoting 10% of “currently-available full-time employees who process non-litigation FOIA requests.” Open Society, 399 F. Supp. 3d at 166. In contrast, should this Court order DOJ to process 1,000 pages per month, that would represent only 4.5% of the 22,000 pages per month DOJ told this Court it is currently processing.
7

Case 1:19-cv-01278-RBW Document 50 Filed 01/07/20 Page 8 of 11
Congressional testimony, the witnesses on CNN’s list are ordered based on the number of pages each witness generated, according to DOJ’s January 3 list, from greatest number of pages to fewest. Leopold and BuzzFeed have prioritized the 302 reports from the witnesses they believe are the most newsworthy.
III. PLAINTIFFS INTEND TO MOVE THE COURT FOR PARTIAL SUMMARY JUDGMENT ON THE B(5) REDACTIONS
Each of DOJ’s productions to date has relied heavily on FOIA’s exemption for “interagency or intra-agency memorandums or letters” that would otherwise be unavailable to an opposing party in discovery. 5 U.S.C. § 552(b)(5). Across the 1,439 pages processed by DOJ to date, DOJ withheld 386 pages, at least in part, due to b(5). And, of the 846 pages released in those productions, 548 pages were at least partially (and in many cases entirely) redacted on the basis of b(5). Together these figures represent nearly two-thirds of the entire production to-date.
There are strong reasons to be skeptical of these redactions. To qualify for the “deliberative process privilege” exemption under b(5), the withheld material must reflect “predecisionsal” and “deliberative” discussions among government employees rather than purely factual material. See, e.g., Russell v. Dep’t of Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982). A 302 interview form records the factual statements of a witness, not the predecisional deliberations of a government employee. Thus, the b(5) exemption here is as puzzling as it is illogical. Indeed, DOJ has cited b(5) in heavily redacting dozens of 302s, including several that seem particularly questionable,6 including:
1. Chris Ruddy, CEO of Newsmax Media
6 Plaintiffs have attached these 302s as Exhibit E.
8

Case 1:19-cv-01278-RBW Document 50 Filed 01/07/20 Page 9 of 11
2. Michael Cohen, President Trump’s former personal attorney7 3. Chris Christie, former Governor of New Jersey 4. K.T. McFarland, former deputy national security adviser8 5. Corey Lewandowski, political adviser Given the extent to which DOJ relied on b(5) to redact material in nearly every 302 it is has produced thus far, Plaintiffs believe it is imperative to receive a ruling on the appropriateness of these redactions. As Judge Rogers articulated in last week’s hearing concerning the House Judiciary Committee’s request for grand jury testimony, “we all know that a single sentence can be devastating.” See Oral Argument, Jan. 3, 2020, Case No. 19-cv-05288. Therefore, Plaintiffs plan to move for partial summary judgment on the issue of b(5) redactions by the beginning of February, absent direction from the Court that such motions practice would be counterproductive. Plaintiffs intend to request that the Court schedule a hearing on those motions at the earliest available date in mid-March.
7 A special master used by the court during the Justice Department’s criminal investigation deemed much of the information concerning Cohen and Trump to be not privileged. See Christina Wilkie, Special master in Michael Cohen case finds few privileged items in initial review of files, CNBC (June 4, 2018) https://www.cnbc.com/2018/06/04/special-master-incohen-case-finds-few-privileged-items-in-initial-review.html; President Trump has also, in at least one case, waived attorney-client privilege with respect to material from Cohen. See Gloria Borger, et al., Trump attorneys waive privilege on secret recording about ex-Playmate payment, CNN (July 22, 2018) https://www.cnn.com/2018/07/21/politics/trump-cohen-recordingprivilege/index.html.
8 McFarland’s information was documented extensively in Volume II of the Mueller Report and by news outlets, including CNN. See, e.g., Katelyn Polantz, et al., Ex-Trump official walked back statement to Mueller probe about Flynn’s talks with Russian diplomat, CNN (Sept. 23, 2018) https://www.cnn.com/2018/09/22/politics/kt-mcfarland-mike-flynn-testimony-russiasanctions/index.html.
9

Case 1:19-cv-01278-RBW Document 50 Filed 01/07/20 Page 10 of 11

IV. CONCLUSION For the reasons set forth in this filing, Plaintiffs respectfully request that, beginning on
March 1, 2020, this Court order DOJ to process and produce at least 1,000 pages per month of the typewritten 302 reports of FBI interviews with witnesses relevant to the Special Counsel’s investigation, starting with the priority lists of witnesses provided by CNN and Leopold and BuzzFeed. Plaintiffs also request that the Court set a mid-March hearing date on their upcoming motions seeking adjudication of DOJ’s (b)(5) exemption claims.

Dated: January 7, 2020

Respectfully submitted,
/s/ Charles D. Tobin Charles D. Tobin (D.C. Bar No. 455593) tobinc@balladspahr.com Matthew E. Kelley (D.C. Bar No. 1018126) kelleym@ballardspahr.com BALLARD SPAHR LLP 1909 K Street, NW Washington, D.C. 20006-1157 T: (202) 661-2200 F: (202) 661-2299
Counsel for Cable News Network, Inc.
/s/ Matthew V. Topic Matthew Topic (E-Mail: foia@loevy.com) LOEVY & LOEVY 311 N. Aberdeen, Third Floor Chicago, Illinois 60607 Tel.: (312) 243-5900 Fax: (312) 243-5902 DC Bar No. IL0037
Counsel for Leopold and BuzzFeed, Inc.

10

Case 1:19-cv-01278-RBW Document 50 Filed 01/07/20 Page 11 of 11

CERTIFICATE OF SERVICE I hereby certify that, on this date, I caused the foregoing to be filed and served electronically via the Court’s ECF System upon counsel of record.

Dated: January 7, 2020

/s/ Charles D. Tobin Charles D. Tobin

11

 
 Case 1:19-cv-01278-RBW Document 51 Filed 01/07/20 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

JASON LEOPOLD, BUZZFEED, INC., )

)

Plaintiffs,

)

)

v.

)

Civil Action No. 19-cv-1278 (RBW)

)

UNITED STATES DEPARTMENT OF )

JUSTICE, et al.

)

)

Defendants.

)

___________________________________ )

)

CABLE NEWS NETWORK,

)

)

Plaintiff,

)

)

v.

)

Civil Action No. 19-cv-1626 (RBW)

)

FEDERAL BUREAU OF

)

INVESTIGATION,

)

)

Defendant.

)

___________________________________ )

DEFENDANT’S STATUS REPORT AND RESPONSE TO THE COURT’S ORDER

Defendant, the Department of Justice (“DOJ”), respectfully submits this status report in

advance of the status conference set for January 8, 2020, to inform the Court of its compliance

with the Court’s Orders and to propose further steps in this case.

DEFENDANT’S COMPLIANCE WITH THIS COURT’S ORDERS

Defendant’s Production of FD-302s

Pursuant to the Court’s Order, Dkt. 49, on January 2, 2020, Defendant produced to

Plaintiffs Jason Leopold and BuzzFeed, Inc. (collectively, “Leopold”), and Plaintiff Cable News

Network (“CNN”) the non-exempt portions of 430 pages of the typewritten narratives of the FD-

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302s that were made available to the United States House Committee on the Judiciary (“House Judiciary Committee”) and the United States House Permanent Select Committee on Intelligence (“House Intelligence Committee”). The FD-302s were redacted with the appropriate exemptions under the Freedom of Information Act (“FOIA”).1 As reflected in the redactions, information was withheld, inter alia, under Exemption 5—which protects from disclosure “inter-agency or intraagency 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). Information was withheld under Exemption 5 based on, inter alia, attorney work product privilege. See, e.g., Judicial Watch, Inc. v. Dep’t of Justice, 391 F. Supp. 3d 43, 53 (D.D.C. 2019), appeal filed, No. 19-5218 (D.C. Cir.) (concluding that “[b]ecause the Forms 302 were prepared in anticipation of impending litigation by FBI agents acting under the substantial direction of Assistant United States Attorneys, they are records exempt from FOIA release as attorney work product under Exemption 5”); New York Times Co. v. Dep’t of Justice, 138 F. Supp. 3d 462, 476 (S.D.N.Y. 2015) (concluding that the “FD302s are exempt from disclosure under FOIA Exemption 5”), aff’d in part, rev’d in part, and remanded, 939 F.3d 479 (2d Cir. 2019).2
Plaintiffs argue in their status report that Defendant’s production has been inconsistent because it has withheld information cited in the report regarding Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 United States presidential election (the “Mueller Report”). See Pls.’ Status Report at 3, Dkt. 50. As an initial matter, the time to address the redactions is at the summary judgment stage, not in a status report. In any event, Plaintiffs
1 Certain FD-302s have not yet been disclosed because the FBI referred them to one or more members of the Intelligence Community for a determination as to whether those agencies’ information should be withheld or released, in compliance with DOJ FOIA regulations. Once those agencies have made their determinations, the portions of those FD-302s determined to be non-exempt will be disclosed. 2 The plaintiff in the New York Times case did not appeal the district court’s decision that the FD-302s were exempt from disclosure under Exemption 5 as attorney work product.
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point to only one example: a quote from the Mueller Report that was redacted in the FD-302 memorializing the interview of Stephen Miller. See id. Upon consultation with the individuals processing the FD-302s, it is undersigned counsel’s understanding that the redaction for that sentence in the Miller FD-302 was a result of an inadvertent human error. Defendant will rerelease the Miller FD-302 with that inadvertent redaction removed.
If Plaintiffs discover what they perceive to be other errors in the future, it would be more productive if they brought them to undersigned counsel’s attention and allowed Defendant time to resolve them before involving the Court. Such a procedure would be more efficient and would conserve the parties’ and the Court’s resources.
Defendant’s Production of a List of Witnesses Pursuant to the Court’s Order, Dkt. 47, on January 3, 2020, the FBI produced to Plaintiffs a list of all of the individuals who were interviewed by the FBI in relation to Special Counsel Mueller’s investigation into Russian interference in the 2016 United States presidential election and for whom a FD-302 form was created. The list included the total volume of the typewritten narratives associated with these individuals’ FD-302 forms. As explained to Plaintiffs, the FBI redacted certain names from the list because revealing the names could affect the FBI’s pending operational sensitivities, potentially reveal protected federal grand jury information, or infringe on individuals’ privacy interests in not being associated with a criminal investigation. See Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 91–92 (D.C. Cir. 1984) (stating that “individuals have a strong interest in not being associated unwarrantedly with alleged criminal activity”). Although Plaintiffs had not raised any issue with the list to undersigned counsel, Plaintiffs argue in their status report that Defendant has redacted witness names which have already been released to the public. See Pls.’ Status Report at 2, Dkt. 50. As an initial matter, information cited
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in press reports does not mean that the information has been officially acknowledged by the government such that the information must be disclosed under the FOIA. See Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007).
More importantly, the FBI created this 35-page list as a result of the Court Order. The FBI worked diligently to ensure that the list was complete and correct, but, owing to the short production time, other work in this case (e.g., processing the FD-302s) and in other cases, and the compressed schedule because of the holiday season, it is possible that inadvertent errors may have been made on the list.3 As undersigned counsel explained to Plaintiffs’ counsel, if such errors are discovered, the FBI will provided a corrected list to Plaintiffs. See Exh. D, Dkt. 50-4. Undersigned counsel will confer with the FBI concerning the issues raised in Plaintiffs’ Status Report to determine whether release of a corrected list is appropriate.
As a general matter, because the FBI has not yet processed all the FD-302s on the list, the FBI has not yet made a final determination on whether the names can be released. Until processing of the FD-302s on the list is complete, it is not feasible to determine whether some of the redactions may be lifted in the future. Once the 302s have been processed, the FBI may be in a position to release the names of certain interviewees that are currently redacted on the list.
Defendant’s Response to Leopold’s Request for “Summaries” of the Mueller Report Leopold filed a FOIA request with DOJ for summaries of the Mueller Report. See Answer,
Exh. I, Dkt. 14-9. Leopold’s FOIA request for the summaries of the Mueller Report encompasses the following:
1. Any and all summaries of the final Mueller report written/drafted by investigators/prosecutors/attorneys working on Special Counsel Robert Mueller’s investigation into any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump. 2. Any
3 Indeed, undersigned counsel alerted Plaintiffs’ counsel of one such error. See Exh. D to Pls.’ Status Report, Dkt. 50-4.
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reports or documents that summarized Special Counsel Robert Mueller’s final report into any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump. These summaries could have been written by any individual working on Special Counsel Robert Mueller’s investigation. Id. On November 28, 2019, the Court ordered the Department to process at least 500 pages of records responsive to this request on a monthly basis and produce the non-exempt portions of those records on a monthly basis beginning on January 3, 2020. See Order, Dkt. 47. Pursuant to that Order, on January 3, 2020, the Department’s Office of Information Policy (“OIP”) issued a response letter to Leopold. In that letter, OIP informed Leopold that searches for records responsive to parts (1) and (2) of Leopold’s request have been conducted in files from the Special Counsel’s Office and in the Offices of the Attorney General and Deputy Attorney General. OIP stated that the Executive Summaries to the Mueller Report were responsive to the FOIA request and that those summaries could be found online in OIP’s FOIA Library.4 OIP further informed Leopold that drafts of the Executive Summaries also were responsive to the request but were being withheld in full under Exemption 5 of the FOIA, which protects from disclosure, inter alia, certain inter- and intra-agency communications protected by the deliberative process privilege. OIP noted that because of “a technical issue, OIP is unable at this time to open these electronic records to determine responsiveness or to provide a page count of drafts withheld in full pursuant to Exemption 5. Other overlapping FOIA Exemptions may also apply to portions of these records.” Finally, OIP informed Leopold that no additional records responsive to the request for summaries of the Mueller Report were located.
4 The Executive Summaries had been previously produced to Leopold in the related case, Leopold v. Department of Justice, No. 19-957-RBW, on May 6, 2019, in response to Leopold’s FOIA request for the Mueller Report.
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PROPOSED NEXT STEPS January and February Productions In compliance with the Court’s Order, Dkt. 49, Defendant is diligently processing the remaining pages of the typewritten narratives of the FD-302s that were made available to the House Judiciary Committee and the House Intelligence Committee for production to Plaintiffs on January 17, 2020. Defendant is also diligently processing 500 pages of the typewritten narratives of the FD-302s referenced in the Mueller Report for production to Plaintiffs on February 3, 2020 (the next business day after Saturday, February 1, 2020). The content and the dates of these productions should remain unchanged. Monthly Productions After February As for the monthly productions after February, the FBI should maintain its pace of processing 500 pages of the typewritten narratives of the FD-302s referenced in the Mueller Report per month. The FBI has estimated that there are approximately 1,400 pages of the typewritten narratives of the FD-302s referenced in the Mueller Report remaining to be processed. At a rate of 500 pages per month, Defendant will complete its processing of the typewritten narratives of the FD-302s referenced in the Mueller Report in the April production. Following the completion of processing of the typewritten narratives of the FD-302s referenced in the Mueller Report, Defendant agrees to process the typewritten narratives of the FD-302s on Plaintiffs’ priority list (Exhibit B to Plaintiffs’ Status Report). Although Plaintiffs urge the Court to adopt the reasoning set forth by a district court in the Southern District of New York for a faster processing schedule, see Pls.’ Status Report at 4–7, that reasoning has not been adopted in this district. Indeed, just the opposite: the D.C. Circuit has recognized that the FBI’s policy of processing 500 pages per request per month “serves to promote
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efficient responses to a larger number of requesters.” Nat’l Sec. Counselors v. Dep’t of Justice, 848 F.3d 467, 471–72 (D.C. Cir. 2017). And in a number of recent cases in this District, a production rate of 500 pages per month has been approved.5 See, e.g., Freedom Watch v. Bureau of Land Mgmt. & Dep’t of Justice, 325 F. Supp. 3d 139, 142 (D.D.C. 2018) (upholding the FBI’s interim release policy of 500 pages per month despite the fact that processing of plaintiff’s FOIA request would take approximately 500 months); Colbert v. Fed. Bureau of Investigation, No. 16CV-1790 (DLF), 2018 WL 6299966, at *3 (D.D.C. Sept. 3, 2018) (permitting a processing rate of 500 pages per month for 71,000 responsive records); Daily Caller News Found. v. Fed. Bureau of Investigation, 387 F. Supp. 3d 112, 121 (D.D.C. 2019) (finding “no reason in this case to vary from the FBI’s policy of processing 500 pages per month” even though there were estimated to be 7,000 potentially responsive documents); Negley v. Dep’t of Justice, 305 F. Supp. 3d 36, 47 (D.D.C. 2018); Elec. Privacy Info. Ctr. v. Fed. Bureau of Investigation, 235 F. Supp. 3d 207, 210 (D.D.C. 2017); Klayman v. Judicial Watch, Inc., 278 F. Supp. 3d 252, 264 (D.D.C. 2017); Middle E. Forum v. Dep’t of Homeland Sec., 297 F. Supp. 3d 183, 186 (D.D.C. 2018); Republican Nat’l Comm. v. Dep’t of State, No. 16-cv-486, 2016 WL 9244625, at *1 (D.D.C. Sept. 16, 2016); Energy Future Coalition v. OMB, 201 F. Supp. 3d 55, 59–60 (D.D.C. 2016); Minute Order, Judicial Watch v. Dep’t of Justice, No. 16–cv–2046 (D.D.C. Apr. 19, 2017); New Orleans Workers’ Ctr. for Racial
5 Not only that, courts in this District routinely approve processing schedules at a rate of less than 500 pages per month. See, e.g., Ctr. for Repro. Rights v. State, No. 18-2217-DLF (D.D.C. Apr. 3, 2019) (directing a 300-page-per-month processing rate, despite the plaintiff’s request for a higher rate, in a case where there are over 123,000 potentially responsive pages); Citizens United v. State, No. 16-67-CRC (D.D.C. Aug. 16, 2016) (ordering 300 page per month review rate despite plaintiff’s request that agency review 2,000 pages per month); Citizens United v. State, No. 16108-RMC (D.D.C. July 27, 2016) (same); Judicial Watch v. State, No. 17-205-CRC (D.D.C. June 30, 2017) (ordering 300 page-per-four-week review rate despite plaintiff’s request that agency review on average more than 16,000 pages per month); Citizens United v. State, No. 18-326-CRC (D.D.C. May 30, 2018 & June 6, 2018) (ordering 300 pageper-month review rate despite plaintiff’s request that agency review almost 8,000 pages per month, “in light of the resource constraints and production orders in other cases”); Blixseth v. Dep’t of Justice, No. 18-2281-JEB (D.D.C. Dec. 17, 2018) (ordering 300 page-per-month review rate); Jordan v. Dep’t of Justice, No. 17-2702-RC (D.D.C. Aug. 28, 2018) (same).
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Justice v. U.S. Immigration & Customs Enf’t, No. CV 15-431 (RBW), 2019 WL 4852743, at *1 (D.D.C. July 11, 2019).
As explained by David Hardy, the Section Chief of the FBI’s Record/Information Dissemination Section (“RIDS”), “[b]y processing and making interim responses based on 500page work items, the FBI is able to provide more pages to more requesters, thus avoiding a system where a few large requests monopolize finite processing resources and where fewer requesters’ requests are being fulfilled.” Hardy Decl. ¶ 19 (Aug. 9, 2019), Dkt. 25-5. “By working in 500 pages increments, the FBI has found that more pages get processed, reviewed, and released to more requesters each month because processors can work on 500-page work items for several requests in a month.” Id. Simply put, processing resources are finite. Increasing the volume to 1,000 pages per month, as Plaintiffs request, would result in Plaintiffs monopolizing more of those resources and leaving fewer resources to process other FOIA requests.
Courts in this Circuit have long considered the effect of other FOIA requests when analyzing the burden on an agency of meeting deadlines for review and production of FOIA material in a given case. See, e.g., Middle East Forum v. Dep’t of Homeland Security, 297 F. Supp. 3d 183, 187 (D.D.C. 2018) (finding that the plaintiff had not provided reasons that its requests should take precedence over other FOIA requests); Elec. Privacy Info. Ctr. v. Dep’t of Justice, 15 F. Supp. 3d 32, 47 (D.D.C. 2014) (denying motion for preliminary injunction requesting immediate production of documents pursuant to FOIA request and noting that allowing the plaintiff “to jump to the head of the line would upset the agency’s processes and be detrimental to the other expedited requesters”); cf. Nat’l Sec. Counselors, 848 F.3d at 471–72 (in context of challenge to FOIA processing fees, stating policy of processing 500 pages per request per month “serves to promote efficient responses to a larger number of requesters”). Accordingly, Plaintiffs’
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demand that Defendant prioritize its request “does little to respond to the agency’s concern that diverting resources to accelerate processing of the plaintiff’s request necessarily will redound to the detriment of other requesters.” Daily Caller v. Dep’t of State, 152 F. Supp. 3d 1, 15 (D.D.C. 2015); see also Allied Progress v. Consumer Fin. Prot. Bureau, 2017 U.S. Dist. LEXIS 67889, *21 (D.D.C. May 4, 2017) (“[E]xpediting FOIA requests is not an end in itself, as it means that either some requests are merely put ahead of others, or that expedited processing is rendered meaningless, as expediting all requests is tantamount to expediting none.”).
In addition, “[r]equiring the agency to process and produce these materials under an abbreviated deadline raises a significant risk of inadvertent disclosure of records properly subject to exemption under FOIA.” Daily Caller, 152 F. Supp. 3d at 14. As explained by FBI’s declarant, processing 500 pages per month is “more manageable for the subject matter experts outside of RIDS who review the materials to ensure that FBI equities are properly addressed.” Hardy Decl. ¶ 19 (Aug. 9, 2019), Dkt. 25-5. These subject matter experts “juggle these FOIA reviews with their regularly assigned work.” Id. This regularly assigned work concerns the operational components of the FBI, as the subject matter experts “can include special agents and intelligence analysts who worked on particular investigations; special agents, intelligence analysts, or other employees who are experts in particular operational or technical subject matters, such as cyber or foreign intelligence threats or CART examinations; and attorneys.” Id. ¶ 19 n.9. These subject matter experts need sufficient time to complete their review of the FD-302s to ensure that no exempt information is inadvertently released.
Finally, the FBI has found that “it is more efficient to run required information security protocols on FOIA releases of 500 pages or less.” Id. ¶ 19. Because “many FBI records contain classified information and because all FBI records are processed on a classified computer enclave,
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records can only be disclosed after being run through security software that scans for particular information to ensure that it is not improperly disclosed.” Id. These security protocols take longer as more pages are added to the production. Id.
With regard to the FD-302s at issue in this case, processing the records sought by Plaintiffs is a time-consuming task requiring multiple reviews by numerous individuals across the Department, and in some instances, consultations with entities outside the Department. Indeed, “[a]s part of the FBI’s FOIA process, subject matter experts and other stakeholders within the FBI are consulted prior to the release of records, and if other agencies’ records or equities are implicated, the FBI consults with those agencies and/or refers records to them for processing prior to any final decisions about release or withholding under the FOIA.” Id. ¶ 18 n.7. This is particularly the case with certain FD-302s of witness interviews taken as part of the investigation into Russian interference with the 2016 presidential election, which require review by various subject matter experts to ensure that counterintelligence and information affecting national security are not disclosed. Some of the FD-302s present classification issues, and all require classification review prior to public release. And because much of this review must take place on classified systems, processing the documents presents additional challenges. See id. ¶ 19.
Based on Defendant’s resource limitations and commitments to other FOIA requesters, Defendant cannot reasonably undertake this process for more than 500 pages per month. As explained in the FBI’s declaration, at the end of fiscal year 2019, FBI had 8,691 pending FOIPA requests, many of which predate the first request at issue in this case. Hardy Decl. ¶ 10 (Nov. 12, 2019), Dkt. 38-1. As of November 12, 2019, FBI had 343 other FOIA matters in litigation, not including this case. Id. ¶ 15. As for DOJ, the Office of Information Policy had 1,820 open FOIA
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requests and 121 ongoing litigations as of November 12, 2019. Vanessa Brinkmann Decl. ¶ 6 (Nov. 12, 2019), Dkt. 38-2.
Defendant is working diligently to meet its obligations in this and other litigations as well as to respond to the thousands of open FOIA requests that are now pending with FBI and DOJ. Defendant’s proposal in this case to continue processing the typewritten narrative portions of the FD-302s at a rate of 500 pages per month is reasonable given these resource constraints and obligations to other FOIA requesters.
Partial Summary Judgment Briefing Plaintiffs argue that the Court should set a briefing schedule concerning Defendant’s withholdings under Exemption 5. See Pls.’ Status Report 8–9. As an initial matter, Plaintiffs appear to believe that all the withholdings under Exemption 5 are under the deliberative process privilege. But, as noted above, the information that was withheld under Exemption 5 was primarily attorney work product. Although Plaintiffs argue that “[t]here are strong reasons to be skeptical of these redactions,” id. at 8, the two district courts that have analyzed the issue have determined that the Department properly withheld FD-302s under Exemption 5 as attorney work product. See Judicial Watch, 391 F. Supp. 3d at 53; New York Times Co., 138 F. Supp. 3d at 476. The redactions for attorney work product under Exemption 5 cover the broadest scope of the redactions in the FD-302s. While ordinarily piecemeal briefing is inefficient and wastes the parties’ and the Court’s resources, briefing the propriety of the attorney work product redactions under Exemption 5 as a threshold issue in this case could expedite processing if the Court issues an expedited ruling on the issue. If the Court orders briefing on partial summary judgment for the threshold attorney work-product issue, Defendant respectfully requests that the Court waive the
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requirement in Local Rule 7(h) that the parties file statements of material facts in support of their cross-motions for partial summary judgment.

Dated: January 7, 2020

Respectfully submitted,
ETHAN DAVIS Principal Deputy Assistant Attorney General Civil Division
ELIZABETH J. SHAPIRO Deputy Director Federal Programs Branch
/s/ Courtney D. Enlow COURTNEY D. ENLOW Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W. Room 12102 Washington, D.C. 20005 Tel: (202) 616-8467 Email: courtney.d.enlow@usdoj.gov
Counsel for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on January 7, 2020, I electronically transmitted the foregoing to the parties and the clerk of court for the United States District Court for the District of Columbia using the CM/ECF filing system.
/s/ Courtney D. Enlow COURTNEY D. ENLOW Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W. Room 12102 Washington, D.C. 20005 Tel: (202) 616-8467 Email: courtney.d.enlow@usdoj.gov
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 Case 1:19-cv-01278-RBW Document 59 Filed 02/03/20 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JASON LEOPOLD and BUZZFEED, INC.,
Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, et al.
Defendants.
CABLE NEWS NETWORK, INC., Plaintiff,
v. FEDERAL BUREAU OF INVESTIGATION,
Defendant.

Case No: 1:19-cv-01278-RBW

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 1:19-cv-01278-RBW Document 59 Filed 02/03/20 Page 2 of 30
TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION ...........................................................................................................................1 FACTUAL AND PROCEDURAL BACKGROUND.....................................................................3
A. Plaintiffs’ FOIA Requests for FBI Interview Memoranda ......................................3 B. DOJ’s Overreliance on Exemption 5 .......................................................................4 ARGUMENT ...................................................................................................................................5 I. FOIA REQUIRES REASONABLY FORESEEABLE HARM TO THE INTERESTS PROTECTED BY EXEMPTION 5...............................................................5 II. DOJ IMPROPERLY RELIED ON EXEMPTION 5 TO WITHHOLD AND REDACT RESPONSIVE INFORMATION IN ITS PRODUCTIONS TO PLAINTIFFS .......................................................................................................................7 A. Work Product Privilege............................................................................................9
1. DOJ Waived the Attorney Work Product Privilege for Material Officially Acknowledged in the Muller Report ..........................10
2. Information Provided in Witness Proffer Statements Is Not Attorney Work Product..............................................................................14
3. Even if DOJ Did Not Waive the Work Product Privilege, DOJ Must Still Produce the Redacted Material Because of the “Governmental Misconduct” Exception ....................................................16
B. Deliberative Process Privilege ...............................................................................19 C. Presidential Communications Privilege .................................................................21 CONCLUSION ..............................................................................................................................24
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TABLE OF AUTHORITIES
Page(s)
Cases
Abtew v. Department of Homeland Security, 808 F.3d 895 (D.C. Cir. 2015) ...................................................................................................7
BuzzFeed, Inc. v. DOJ, 2019 U.S. Dist. LEXIS 208770 (D.D.C. Dec. 4, 2019) ...........................................................20
*Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir. 1980) .....................................................................................18, 19, 20
Cornucopia Inst. v. Department of Agriculture, 2018 U.S. Dist. LEXIS 166173 (D.D.C. Sept. 27, 2018) ........................................................20
Cottone v. Reno, 193 F.3d 550 (D.C. Cir. 1999) ...........................................................................................10, 11
Center for Effective Government v. Department of State, 7 F. Supp. 3d 16 (D.D.C. 2013) ...............................................................................................22
*Center for Investigative Reporting v. U.S. Customs & Border Protection, 2019 U.S. Dist. LEXIS 223077 (D.D.C. Dec. 31, 2019) .................................................6, 7, 16
*Department of Interior v. Klamath Water Users Protective Association, 532 U.S. 1 (2001).........................................................................................................5, 8, 9, 19
DOJ v. Reporters Committee for Freedom of Press, 489 U.S. 749 (1989)...................................................................................................................6
Ellis v. DOJ, 110 F. Supp. 3d 99 (D.D.C. 2015) ...........................................................................................16
FTC v. Grolier, Inc., 462 U.S. 19 (1983).....................................................................................................................8
Gold Anti-Trust Action Committee, Inc. v. Board of Governors of the Federal Reserve System, 762 F. Supp. 2d 123 (D.D.C. 2011) .........................................................................................21
*Judicial Watch, Inc. v. Department of Defense, 913 F.3d 1106 (D.C. Cir. 2019) ...............................................................................................21
Judicial Watch, Inc. v. DOJ, 2019 U.S. Dist. LEXIS 163473 (D.D.C. Sept. 24, 2019) ..........................................................8
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Judicial Watch, Inc. v. DOJ, 391 F. Supp. 3d 43 (D.D.C. 2019) .............................................................................................8
Judicial Watch, Inc. v. Department of Commerce, 375 F. Supp. 3d 93 (D.D.C. 2019) .............................................................................................6
*Mobley v. CIA, 806 F.3d 568 (D.C. Cir. 2015) ...........................................................................................10, 11
National Archives & Records Administration v. Favish, 541 U.S. 157 (2004)...................................................................................................................5
National Whistleblower Center v. Department of Health & Human Services, 849 F. Supp. 2d 13 (D.D.C. 2012) ...........................................................................................21
*Neighborhood Assistance Corp. of America v. Department of Housing and Urban Development, 19 F. Supp. 3d 1 (D.D.C. 2013) .........................................................................................16, 17
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978)...................................................................................................................5
*NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975).........................................................................................................8, 9, 19
Pinson v. DOJ, 236 F. Supp. 3d 338 (D.D.C. 2017) ...........................................................................................5
Playboy Enterprises Inc. v. DOJ, 677 F.2d 931 (D.C. Cir. 1982) .................................................................................................20
Protect Democracy Project, Inc. v. Department of Defense, 320 F. Supp. 3d 162 (D.D.C. 2018) .........................................................................................21
Rosenberg v. Department of Defense, 342 F. Supp. 3d 62 (D.D.C. 2018) .............................................................................................8
Russell v. Department of Air Force, 682 F.2d 1045 (D.C. Cir. 1982) ...............................................................................................20
In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) ...........................................................................................21, 22
*In re Sealed Case, 29 F.3d 715 (D.C. Cir. 1994) .............................................................................................14, 16
In re Sealed Case, 877 F.2d 976 (D.C. Cir. 1989) .................................................................................................14
iii

Case 1:19-cv-01278-RBW Document 59 Filed 02/03/20 Page 5 of 30 Wolfe v. Department of Health & Human Services,
839 F.2d 768 (D.C. Cir. 1988) ...........................................................................................19, 20 Statutes 5 U.S.C. § 552......................................................................................................................2, 5, 6, 7 Other Authorities 28 C.F.R. § 600.4(a).......................................................................................................................17 162 Cong. Rec. H3717 (2016) .........................................................................................................7 S. Rep. No. 114–4 (2015) ................................................................................................................7
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Plaintiffs Cable News Network, Inc. (“CNN”), Jason Leopold, and BuzzFeed, Inc., through counsel, hereby move this Court for partial summary judgment regarding Defendants United States Department of Justice’s (“DOJ”) and the Federal Bureau of Investigation’s (“FBI”) redactions and withholdings under Freedom of Information Act Exemption 5.
INTRODUCTION As the Court knows, these cases involve government records of the highest public importance: documents related to the investigation by Special Counsel Robert S. Mueller III into Russian interference with the 2016 elections, the possible involvement of officials with President Donald Trump’s campaign in that interference, and the President’s possible obstruction of justice during the course of the investigation. Over more than eighteen months, the Special Counsel’s Office interviewed hundreds of witnesses, generating more than 1,000 interviews memorialized in FBI interview reports called FD-302 forms. In March 2019, the Special Counsel’s Office released its report summarizing the findings of its investigation. (“Mueller Report”). That same month, reporters at BuzzFeed, Inc. and CNN filed Freedom of Information Act (“FOIA”) requests with DOJ seeking access to records related to the Special Counsel’s investigation, including the 302 forms recording the information provided by witnesses in the probe. The Special Counsel investigation is unique in the history of modern America, spawning criminal investigations in several jurisdictions, including the federal criminal prosecutions of the chairman of the Trump campaign and his top deputy, President Trump’s first National Security Adviser, Trump’s former personal attorney, others more peripherally involved in the Trump campaign, and Russian nationals involved in its intelligence agencies’ attacks on our democracy. The investigation led, in part, to only the third impeachment of a U.S. President, and, in turn, to
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the ongoing impeachment trial of President Trump before the U.S. Senate. And yet, many of the details surrounding the Special Counsel’s investigation remain hidden through various assertions of privilege and the White House’s refusal to cooperate with the ongoing impeachment inquiry.
Journalists, including Plaintiffs, have used FOIA to attempt to pierce that veil of government secrecy – the very purpose for which the statute was enacted more than 50 years ago. Still, those journalists, in what seems to be an increasingly routine course of business, must petition the courts to release information owed them under the terms of FOIA.
These cases are another example of the difficulties the public faces in vindicating the right to government information under FOIA. In their productions to date to Plaintiffs, DOJ and FBI entirely withheld nearly 40 percent of the responsive material, and heavily redacted nearly 75 percent of the remaining pages. The agencies justify their secrecy by relying most heavily on Exemption 5 to FOIA – a discretionary exemption – which protects “inter-agency or intraagency memorandums or letters that 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).
Plaintiffs carefully reviewed the productions, and much of the justification for the massive invocation of Exemption 5 appears, to put it bluntly, highly suspicious. The agencies claim to have relied on the attorney work product privilege, deliberative process privilege, and presidential communications privilege to withhold factual information that has already been made public in the Mueller Report and in open court proceedings or offered by witnesses pursuant to proffer agreements. This factual information details the activities of President Trump and his campaign, associates and administration, including much that suggests evidence of extreme government misconduct.
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Such reliance on Exemption 5 cannot be allowed to stand. And, given the historic importance of the impeachment inquiry and rapidly approaching Presidential election, the American public’s need for this information could not be greater. For the reasons articulated below, Plaintiffs respectfully urge this Court to uphold the purpose of FOIA so that the public may review the information for themselves, check against corruption, and hold the highest levels of government accountable.
FACTUAL AND PROCEDURAL BACKGROUND A. Plaintiffs’ FOIA Requests for FBI Interview Memoranda
Plaintiffs in this action each filed FOIA requests seeking materials related to Special Counsel Robert Muller’s investigation of Russian interference in the 2016 Presidential election, whether anyone from President Trump’s campaign was involved, and whether the President obstructed justice related to the investigation. On March 21, 2019, BuzzFeed Inc. and reporter Jason Leopold submitted a FOIA request to DOJ seeking, in part, FBI interview memoranda and related materials. On March 26, 2019, CNN Reporter Katelyn Polantz submitted a FOIA request to DOJ seeking copies of “FBI memoranda, such as 302s, from any and all of the interviews of the ‘approximately 500 witnesses’ in the Mueller investigation,” as well as “any and all case files” related to those interviews.
Having received no response from the FBI, Plaintiffs filed separate lawsuits seeking release of materials responsive to their requests. See Compl., Case No. 1:10-cv-01278 (May 2, 2019), Dkt. 1 (BuzzFeed and Leopold complaint); Compl., Case No. 1:19-cv-01626 (June 4, 2019), Dkt. 1 (CNN complaint).
On October 3, 2019, this Court consolidated these matters to the extent Plaintiffs sought FBI 302 forms related to the Special Counsel’s investigation. See Order, Case No. 1:10-cv-
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01278-RBW (Oct. 3, 2019), Dkt. 33. This Court further ordered that, beginning on or before November 1, 2019, DOJ process at least 500 pages of “records responsive to the plaintiffs’ request for FBI FD-302 forms” and produce to Plaintiffs, “on the 1st day of every month . . . the non-exempt portions of all responsive records.” Id. At the January 30, 2020 status conference, the Court ordered DOJ to begin processing responsive materials at an increased rate of at least 800 pages per month, beginning with the March 1, 2020 production.
B. DOJ’s Overreliance on Exemption 5 Beginning with its November 2, 2019 production and continuing through its January 17,
2020 production, DOJ has processed – at the Court’s direction – 1,661 pages responsive to Plaintiffs’ FOIA requests and has produced to Plaintiffs 1,015 pages of material. Thus far, DOJ has only produced approximately 100 302s for roughly 42 witnesses – a fraction of the more than 1,000 302s generated from approximately 500 witnesses interviewed in the Special Counsel’s investigation.1
Of all the pages processed, DOJ withheld in their entirety 646 pages of responsive materials, including 396 pages, withheld at least in part, pursuant to Exemption 5. These 396 pages represent more than 60 percent of all pages withheld and nearly 24 percent of the total pages processed as of the January 17, 2020 production. Of the pages produced, roughly 74 percent contain at least some redactions pursuant to Exemption 5, the majority of which are heavily, or entirely, redacted pursuant to that exemption.
1 Although DOJ produced, pursuant to this Court’s order (Dkt. 47), a list of the witnesses interviewed as part of the Special Counsel’s investigation, DOJ withheld the names for roughly two-thirds of the total universe of 302s, making it impossible for Plaintiffs to deduce the total number of witnesses interviewed by the Special Counsel’s office. Plaintiffs therefore rely on the Special Counsel’s Report, which notes that investigators “interviewed approximately 500 witnesses.” See 1 Mueller Report at 13.
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At the current Court-ordered rate of 800 pages per month, Plaintiffs anticipate that DOJ will complete the processing and production of the 302 forms no later than August 1, 2020.2
ARGUMENT I. FOIA REQUIRES REASONABLY FORESEEABLE HARM TO THE
INTERESTS PROTECTED BY EXEMPTION 5 The Freedom of Information Act (“FOIA”) requires federal agencies to make agency records promptly available to any member of the public upon request, unless those records fall within one of nine narrowly construed exemptions. 5 U.S.C. § 552(a)(3), (b). As the Supreme Court explained, because it provides “a means for citizens to know ‘what the Government is up to,’” FOIA represents “a structural necessity in a real democracy.” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-72 (2004) (citation omitted). Exemption 5 and most other FOIA exemptions are discretionary, meaning that agencies can withhold information if they choose but are not required to do so. Pinson v. DOJ, 236 F. Supp. 3d 338, 359 (D.D.C. 2017). None of these exemptions alters the basic purpose of FOIA, which is “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). Nor do these exemptions “obscure the basic policy that disclosure, not secrecy, is the dominant objective of [FOIA].” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 7-8 (2001). An agency withholding material bears the
2 Plaintiffs estimate that after today’s production of 500 responsive pages, approximately 4,200 pages with remain for DOJ to process and produce. Following the parties’ January 23, 2020 court-mandated meet-and-confer, Plaintiffs provided to DOJ a list of twenty-two 302s included on DOJ’s January 3 list of interviewees that appear to be duplicate entries. These forms total 222 pages. If these 302s are, as Plaintiffs suspect, duplicate entries, Plaintiffs expect that DOJ will not produce duplicates and complete the processing and production of all 302 forms by its July 1, 2020 production.
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burden “to sustain its action,” and courts are directed to “determine the matter de novo.” DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755 & n.6 (1989) (internal quotations omitted).
In 2016, Congress passed the FOIA Improvement Act, which placed an additional burden on agencies when withholding information subject to a discretionary exemption like Exemption 5. The Act provided that an agency may only withhold information if “(I) the agency reasonably foresees that disclosure would harm an interest protected by an exemption . . . or (II) disclosure is prohibited by law.” 5 U.S.C. § 552(a)(8)(A)(i). In passing this Act, “Congress was especially concerned about agencies’ reliance on Exemption 5 and the deliberative process privilege.” Ctr. for Investigative Reporting v. U.S. Customs & Border Prot., 2019 U.S. Dist. LEXIS 223077, at *20 (D.D.C. Dec. 31, 2019) (denying the government’s withholdings for failing to meet the increased burden under Exemption 5). This was “based on the recognition that ‘from the beginning, agencies have taken advantage of these exemptions to withhold any information that might technically fit.’” Judicial Watch, Inc. v. Dep't of Commerce, 375 F. Supp. 3d 93, 100 (D.D.C. 2019) (quoting 162 Cong. Rec. H3714-01, H3717162 (2016) (noting that although some agencies “have made an effort to comply with the letter of the law, very few have complied with the spirit of the law”)).
“Foreseeable harm,” as the court in Center for Investigative Reporting said, “imposes an independent and meaningful burden on agencies,” and requires agencies to “identify specific harms to the relevant protected interests that it can reasonably foresee would actually ensue from disclosure of the withheld materials and connect the harms in a meaningful way to the information withheld.” 2019 U.S. Dist. LEXIS 223077, at *23-24 (internal marks and quotations omitted). “Boiler plate language,” for example, will not satisfy the foreseeable harm standard.
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Id. at *25. Similarly, the Senate Report for the bill explains that “mere speculative or abstract fears . . . are an insufficient basis for withholding information.” S. Rep. No. 114–4, at 8 (2015) (internal marks omitted). And in the House, Republican Rep. Mark Meadows said that “[u]nder the presumption of openness, agencies may no longer withhold information that is embarrassing or could possibly paint the agency in a negative light simply because an exemption may technically apply. This will go a long way toward getting rid of the withhold-it-because-youwant-to exemption.” 162 Cong. Rec. H3717 (2016).
For the reasons below, DOJ’s Exemption 5 redactions and withholdings to date are outside of the exemption’s narrow scope and do not protect any reasonably foreseeable harm to the interests protected by Exemption 5.
II. DOJ IMPROPERLY RELIED ON EXEMPTION 5 TO WITHHOLD AND REDACT RESPONSIVE INFORMATION IN ITS PRODUCTIONS TO PLAINTIFFS
Exemption 5 is one of the FOIA’s most over-used and abused exemptions. By statute, Exemption 5 provides a discretionary exemption for “inter-agency or intra-agency memorandums or letters that 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). Courts have interpreted it to include traditional civil litigation privileges including attorney-client communications, attorney work product, the deliberative process privilege, the state secrets privilege and executive privilege. See, e.g., Abtew v. Dep’t of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015). But Exemption 5 does not simply provide a blanket exemption. Instead, in order to withhold a document under Exemption 5, the government must demonstrate that the document satisfies two conditions: “[1] its source must be a Government agency, and [2] it must fall within the ambit of a privilege
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against discovery under judicial standards that would govern litigation against the agency that holds it.” Klamath, 532 U.S. at 8.
Because Exemption 5 is a “discretionary” exemption, DOJ must demonstrate that disclosure will foreseeably harm the interest protected by the specific privilege claimed. See Rosenberg v. Dep’t of Def., 342 F. Supp. 3d 62, 77 (D.D.C. 2018). And where, as here, DOJ withholds entire documents, or particular pieces of information in a document, under Exemption 5, DOJ must justify each invocation of the exemption. See Judicial Watch, Inc. v. DOJ, 2019 U.S. Dist. LEXIS 163473, at *20 (D.D.C. Sept. 24, 2019) (stating that where DOJ withheld individual entries on the basis of work product, and “[b]ecause each entry differs in its subject matter and DOJ invokes the privilege as to each withheld entry, DOJ must provide enough information for the Court to evaluate whether each of the withheld summaries was appropriately withheld as attorney work product.”).
Congress intended Exemption 5 to be “as narrow as is consistent with efficient Government operation.” FTC v. Grolier, Inc., 462 U.S. 19, 23 (1983) (internal marks omitted); see also Klamath, 532 U.S. at 9 (the “point” of Exemption 5 “is not to protect Government secrecy pure and simple”). FOIA requesters are to receive information that would be routinely disclosed in litigation. See, e.g., NLRB v. Sears, Roebuck & Co. (“NLRB”), 421 U.S. 132, 14849 (1975) (“[S]ince the Act clearly intended to give any member of the public as much right to disclosure as one with a special interest therein, it is reasonable to construe Exemption 5 to exempt those documents, and only those documents, normally privileged in the civil discovery context.”) (citations omitted); see also Judicial Watch, Inc. v. DOJ, 391 F. Supp. 3d 43, 49-50 (D.D.C. 2019).
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In this action, DOJ represented to Plaintiffs that it withheld material from its productions based on Exemption 5’s protection of (1) attorney work product; (2) deliberative process privilege, and (3) presidential communications privilege. See Email from Courtney D. Enlow to Matt Topic, et al., Attachment 2020.1.13 List of b5 Withholdings, Jan. 13, 2020 (Attached as Exhibit A).3 Within each of these claimed privileges, DOJ impermissibly withheld responsive materials.
A. Work Product Privilege The work product privilege protects “memoranda prepared by an attorney in
contemplation of litigation which set forth the attorney’s theory of the case and his litigation strategy.” NLRB, 421 U.S. at 154. Congress intended this narrow exemption to protect the mental impressions of lawyers. See Klamath, 532 U.S. at 8 (“Work product protects ‘mental processes of the attorney.” (quoting United States v. Nobles, 422 U.S. 225, 238 (1975)).
DOJ represented that twelve of the 302s produced to Plaintiffs contain Exemption 5 redactions based exclusively on claims of work product. See Exhibit A. Exemption 5 redactions in another twenty 302s were premised in part on the work product privilege. Id. (DOJ also redacted these twenty 302s on the basis of presidential communications privilege and deliberative process privilege). As with all of the records at issue here, these 302s detail the factual information from witnesses whom government agents interviewed as part of the Special Counsel’s investigation.
3 DOJ provided this list before its January 17, 2020 production. Because of that, Plaintiffs do not specifically address the 302s produced on January 17 in this brief. Plaintiffs anticipate, however, addressing the January 17 production in their reply brief.
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Plaintiffs reviewed eight reports redacted under the work product privilege.4 DOJ, however, waived that privilege with respect to much of these redactions, either because: (1) DOJ officially acknowledged the information in other contexts or (2) a witness provided the material to government agents pursuant to a proffer agreement. In the event the Court determines DOJ did not waive this privilege, DOJ must still disclose the information because it provides evidence of extreme governmental misconduct. Particularly in light of the burden DOJ carries to articulate a reasonably foreseeable harm in order to justify withholding this information, the Court should order DOJ to reprocess and produce these materials. No foreseeable harm can exist in disclosing information that is already public, voluntarily disclosed or reflects extreme government misconduct.
1. DOJ Waived the Attorney Work Product Privilege for Material Officially Acknowledged in the Mueller Report
“When information has been ‘officially acknowledged,’ its disclosure may be compelled even over an agency’s otherwise valid exemption claim.” Mobley v. CIA, 806 F.3d 568, 583 (D.C. Cir. 2015) (internal quotation omitted); see also Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999) (“Under our public-domain doctrine, materials normally immunized from disclosure under FOIA lose their protective cloak once disclosed and preserved in a permanent public record.”).
In determining whether an agency officially acknowledged information responsive to a FOIA request, courts employ a three-part test: “(1) the information requested must be as specific
4 Yet another discrepancy in the government’s productions: Although DOJ represented that it produced twelve 302 forms that the FBI redacted exclusively pursuant to the work product privilege, Plaintiffs have not received four of these 302 forms. The missing 302s include two interviews of Richard Gerson, a New York hedge fund manager and associate of Jared Kushner, and two additional interviewees whose names DOJ withheld.
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as the information previously released; (2) the information requested must match the information previously disclosed, and (3) the information requested must already have been made public through an official and documented disclosure.” Mobley, 806 F.3d at 583 (internal quotation omitted). Plaintiffs bear the initial burden to show that the material sought was officially acknowledged. See Cottone, 193 F.3d at 556. But once Plaintiffs meet that burden, “it is up to the government, if it so chooses, to rebut the plaintiff’s proof by demonstrating that the specific . . . records identified have since been . . . removed from the public domain.” Id.
The Mueller Report cites material from seven of the eight 302s redacted exclusively pursuant to work product – and nearly all of the material cited in the Report is redacted from the records provided to Plaintiffs.5 The material cited in the Mueller Report includes substantial information about the dealings between the Trump Organization and the Trump Administration, and Russian business and government officials. It also includes extensive information about the Trump Tower Moscow project and the June 9, 2016 meeting at Trump Tower between Donald Trump Jr., Paul Manafort, and Russian lawyer Natalia Veselnitskaya regarding supposed “dirt” on Hillary Clinton. The Mueller Report also discusses relationships between individuals in the Trump orbit and Russian contacts regarding U.S.-Russian relations. The following is a nonexhaustive list of some of the key, substantive information the DOJ improperly redacted from these forms6:
5 The eighth 302, in which every line was redacted, is for John Mashburn, a Trump Administration official and former policy director to the Trump Campaign. Although the Mueller Report did not cite this 302, for reasons discussed below, these withholdings are still improper. See infra Part (A)(2).
6 Plaintiffs reviewed all 302s that contain Exemption 5 redactions for productions through January 2, 2020. For completeness, and ease of the Court’s consideration, Plaintiffs have attached a spreadsheet detailing each found instance of material that is redacted from these 302s but is cited in the Mueller Report. See Exhibit B.
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 Dimitri Simes, president and chief executive officer of Center for the National Interest (CNI), March 8, 2018 interview: Simes spoke with Jared Kushner about CNI “hosting a foreign policy speech by candidate Trump” and agreed to provide behind-the-scenes input on the substance of the speech. See 1 Mueller Report at 105 (citing Simes at 7, 8-11). On the day of the speech, Simes witnessed a meeting between Trump and Sergey Kislyak, then the Russian ambassador to the United States. Id. at 106 (citing Simes at 21). Following the April 2016 speech and the presidential election, Simes and Kushner had “both in-person meetings and phone conversations.” Id. at 108 (citing Simes at 27). During an August 17, 2016 meeting, “Simes provided Kushner the Clinton-related information that he had promised.” Id. at 109 (citing Simes at 29-30). Attached as Ex. C.
 Dimitri Simes, March 27, 2018 interview: Richard Burt, a former U.S. ambassador on CNI’s board, asked Simes “if he could arrange a meeting with Kushner to discuss setting up a high-level communications channel between Putin and the incoming Administration. Simes told the Office that he declined and stated to Burt that setting up such a channel was not a good idea in light of the media attention surrounding Russian influence in the U.S. presidential election. According to Simes, he understood that Burt was seeking a secret channel.” 1 Mueller Report at 164 (citing Simes at 4, 5). Attached as Ex. D.
 Roman Beniaminov, Russian real estate developer who worked with Aras Agalarov, January 6, 2018 interview: a publicist for Emin Agalarov, Robert Goldstone, “facilitated the ongoing contact between Trumps and the Agalarovs— including an invitation that Trump sent to Putin to attend the 2013 Miss Universe Pageant in Moscow.” See 1 Mueller Report at 111 (citing Beniaminov at 3). Attached as Ex. E.
 Ike Thomas Kaveladze, vice president of Russian development company Crocus Group and Aras Agalarov’s deputy in the United States, November 16, 2017 interview: detailed how “Donald J. Trump, Jr. served as the primary negotiator on behalf of the Trump Organization” for the Trump Tower Moscow project, Mueller Report at 67 (citing Kaveladze at 2, 4-6); how the “relationship continued over time, as the parties pursued the Trump Moscow project in 2013-2014 and exchanged gifts and letters in 2016,” id. at 111 (citing Kaveladze at 5-6); and about how, at a lunch before the June 9, 2016 meeting at Trump Tower, Russian attorney Natalia “Veselnitskaya showed Akhmetshin a document alleging financial misconduct by Bill Browder and the Ziff brothers (Americans with business in Russia), and those individuals subsequently making political donations to the DNC,” id. at 117 (citing Kaveladze at 7). Attached as Ex. F.
 Giorgi Rtskhiladze, businessman involved with Michael Cohen and the Trump Tower Moscow project, May 10, 2018 interview: told investigators that he spoke with Cohen because “Rtskhiladze had pursued business ventures in Moscow, including a licensing deal with the Agalarov-owned Crocus group.” 1 Mueller Report at 70 (citing Rtskhiladze at 1). Attached as Ex. G.
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The Mueller Report even cites two interviews with Richard Gerson – which DOJ withheld in their entirety from the January 2, 2020 production – a combined 17 times:
 Richard Gerson, June 5, 2018 interview: In “late November 2016, the UAE national security advisor introduced [Kirill] Dmitriev to Rick Gerson, a friend of Jared Kushner who runs a hedge fund in New York.” See 1 Mueller Report at 156 (citing Gerson at 1, 3); Dmitriev asked Gerson “who he should meet with in the incoming Administration” to talk about “improved economic cooperation between the United States and Russia.” Id. at 157 (citing Gerson at 3). Gerson and Dmitriev worked on a “U.S.-Russia reconciliation” plan that Gerson gave to Kushner. Id. at 158 (citing Gerson 6/5/18 at 3; Gerson 6/15/18 at 2). Kushner told Gerson “he would get it to the right people.” Id. at 158 (citing Gerson at 3).
 Richard Gerson, June 15, 2018 interview: Dmitriev told Gerson that he had been “tasked by Putin to develop and execute a reconciliation plan between the United States and Russia,” 1 Mueller Report at 157 (citing Gerson at 1); Gerson told Dmitriev that he gave the reconciliation plan to Kushner, id. at 158 (citing Gerson at 2).
The Special Counsel’s Office acted at the direction of DOJ. See Special Counsel Appointment. The Mueller Report is thus DOJ’s official acknowledgment of all the information it contains. As the prior examples show, DOJ improperly withheld and redacted extensive information that it previously officially acknowledged. On this record, the withholding of information exceeds the narrow protection afforded by Exemption 5, and it certainly will not protect against any foreseeable harm. The Court should order DOJ to reprocess the 302 forms provided to Plaintiffs thus far and process 302s on a going-forward basis under the narrow strictures of the exemption.7
7 DOJ’s presentations at the various criminal trials stemming from the Special Counsel’s investigation also represent official acknowledgements of information contained in the 302s at issue. DOJ should be directed to provide this information as well.
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2. Information Provided in Witness Proffer Statements Is Not Attorney Work Product
Of the eight 302s that DOJ purportedly redacted for attorney work product, four reflect information provided to investigators pursuant to a proffer agreement, including those for John Mashburn, Felix Sater and Dimitri Simes. Factual information provided by a witness under a proffer agreement cannot constitute the work product of a government attorney, since by definition that information came from the witness, not the attorney.
Moreover, when entering into a proffer agreement and disclosing information to investigators, witnesses waive any privilege that might exist in the information provided. See In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989). This waiver “extends to all other communications relating to the same subject matter.” In re Sealed Case, 29 F.3d 715, 719 (D.C. Cir. 1994).
Although DOJ has not produced to Plaintiffs these specific proffer agreements,8 DOJ previously produced two other proffer agreements for Steve Bannon and Michael Cohen, which are identical in terms of the scope of the agreement and the commitments the government made in exchange for the witness’s testimony. See Bannon Proffer, Jan. 18, 2019, attached as Exhibit H; see also Cohen Proffer, Aug. 6, 2018, attached as Exhibit I. The Court reasonably can conclude that the proffers entered into by Mashburn, Sater and Simes also contain similar, if not identical, provisions.
These proffer agreements make clear that the witnesses knew they were waiving any privilege they may have had in the material. The agreements include language that allows the government to “make derivative use of any statements” of the witnesses, or information provided
8 DOJ provided these 302s to Plaintiffs in the January 2 production, which was the first production that prioritized production of the 302 forms over related materials.
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by them, during the meeting; states that the witnesses “knowingly and voluntarily” waived any
right they may have had “under Fed. R. Evid. 410, Fed. R. Crim. P. 11(f), or otherwise, to
prohibit the use against Client of statements made or information provided during the meeting”;
and permits the government to “disclose the fact of the meeting or the information provided by
Client during the meeting to the extent the government determines in its sole discretion that
disclosure would be in furtherance of its discharge of its duties and responsibilities or is
otherwise required by law.” See Ex. H, at Bates # 635, (4), (6) and (9); see Ex. I, at Bates # 502,
(4) (6) and (9).
Despite these waivers, nearly every line of these four 302s is redacted:
 Every line of the six-page 302 reflecting an interview with John Mashburn, a Trump Administration official and former policy director to the Trump Campaign, is redacted under Exemption 5, even though the 302 says Mashburn “signed the attached proffer letter and then provided the following information.” See Mashburn 8/2/18 302 at 1. Attached as Ex. J.
 In the 20-page 302 reflecting the 3/27/2018 interview with Dimitri Simes, only five lines of text are visible. The rest of the 20 pages are redacted almost exclusively under Exemption 5, even though the 302 also begins by noting that “in the presence of his attorneys, Simes executed the proffer agreement, whereupon he provided the following information.” See Ex. D at 1; see also Ex. C at 1 (nearly every line of Simes’ 3/8/2018 302 is redacted pursuant to Exemption 5, and again, Simes provided the information pursuant to a proffer agreement).
 The eight-page 302 reflecting a 9/19/2017 interview with Felix Sater begins by noting that Sater received a proffer letter, reviewed it, signed it, and then provided information in the 302. Only four lines of text are visible. Sater 9/19/2017 302 at 1. Attached as Ex. K.
Put simply, information provided to investigators pursuant to a proffer agreement does
not reflect the attorney work product of those investigators. Further, the witness waived any
privilege that may have existed when the witness signed the proffer agreement. DOJ cannot now
redact this material under a claimed work product privilege. Nor can DOJ claim that, despite the
witnesses’ acknowledgment that DOJ could disclose the information in furtherance of its
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obligations under the law, concealing this information protects against any “relevant protected interests” of the witnesses. See Ctr. for Investigative Reporting, 2019 U.S. Dist. LEXIS 223077, at *23-24.
DOJ has, therefore, improperly redacted information that it officially acknowledged and/or received from witnesses pursuant to proffer agreements. However, the inquiry is not complete, even if DOJ reprocesses these specific 302s, because waiver “extends to all other communications relating to the same subject matter.” In re Sealed Case, 29 F.3d at 719. Therefore, to the extent other 302s and related materials yet to be processed address the same information, no attorney work product privilege exists over that information, and the material must be produced to Plaintiffs.
3. Even if DOJ Did Not Waive the Work Product Privilege, DOJ Must Still Produce the Redacted Material Because of the “Governmental Misconduct” Exception
In certain circumstances, information that the government could otherwise withhold under Exemption 5 loses its protection because of the “government misconduct exception.” The type of government misconduct that will void Exemption 5 “must be severe enough to qualify as nefarious or extreme government wrongdoing.” Neighborhood Assistance Corp. of Am. v. Dep’t of Housing and Urban Devel., 19 F. Supp. 3d 1, 14 (D.D.C. 2013); see also Ellis v. DOJ, 110 F. Supp. 3d 99, 110 (D.D.C. 2015) (noting that while the “government-misconduct exception” has been traditionally applied to the deliberative process privilege, if the exception applies in the work product privilege context, it should be invoked “in cases of extreme government wrongdoing”).
Another court in this district highlighted examples of “extreme government wrongdoing” including documents related to (1) “misuse of a government personnel file to discredit a witness in an ongoing investigation of the Clinton administration,” (2) a “recommendation to use the
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powers of the IRS in a discriminatory fashion against ‘enemies’ of the Nixon administration,” and (3) “unlawful discrimination against non-liturgical chaplains—the core issue of the dispute.” Neighborhood Assistance Corp. of Am., 19 F. Supp. 3d at 14.
The details recounted in these 302s concern allegations of the most extreme government misconduct and go to the very heart of the Special Counsel’s Office charge to investigate “(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump, and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a),” which includes the authority to “prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.” Special Counsel Appointment; 28 C.F.R. § 600.4(a).
As detailed above, much of the withheld information officially acknowledged in the Mueller Report relates specifically to the Trump Tower Moscow project and the June 9, 2016 Trump Tower meeting. These events are at the center not only of the Special Counsel’s investigation, but also Congress’s inquiries into President Trump’s Administration, its ties to Russia, and the ongoing impeachment inquiry (which, given DOJ’s pace of production will likely conclude before DOJ completes production of the 302 forms, and will certainly conclude before DOJ completes production of the related materials that are also responsive to Plaintiffs’ requests).
Indeed, one possible instance of obstruction of justice cited in the Mueller Report is President Trump’s efforts to prevent disclosure of emails about the June 9, 2016 Trump Tower
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meeting and his role in creating misleading public statements about that meeting. See 2 Muller
Report at 98-107.
Plaintiffs are also especially concerned by DOJ’s pattern of redacting negative
information while disclosing to Plaintiffs information favorable or benign to the Trump
Administration. For example:
 In the 302 form for the Rtskhiladze interview, the only information visible in the entire seven-page 302 is beneficial to President Trump: “[redacted] a salacious tape regarding Donald Trump. On the same day [redacted] says they’re fake. After hearing this, Rtzkhiladze did not contact Cohen to tell him [redacted] believed they were fake.” See Ex. G at 7. As noted above, the Muller Report shows that this interview details Rtskhiladze’s contacts with President Trump’s personal lawyer regarding the Trump Tower Moscow project.
 In the 302 form for the Simes 3/8/2018 interview, Plaintiffs received benign details about an April 2016 foreign policy speech by Trump, see Ex. C at 12-13, but were denied material concerning CNI’s behind-the-scenes input and logistics help on the speech, various communications between Simes and Jared Kushner, Simes’ providing Clinton-related information to Kushner, and Donald Trump meeting then-Russian Ambassador Kislyak.
 In the 302 form for the Simes 3/27/2018 interview, Plaintiffs could see that “the last thing Simes wanted was for CNI to be seen as an intermediary between the Russian government and a U.S. Presidential administration,” see Ex. D at 5, but DOJ redacted information that former U.S. ambassador Richard Burt approached Simes about setting up a meeting with Kushner to arrange for high-level communications between Putin and the Trump Administration, and that Simes thought Burt wanted a secret back channel. Plaintiffs also did not receive details about a meeting between Simes and Kushner on August 17, 2016 when Simes provided Kushner information related to Clinton.
Selective disclosures of favorable information to a government official is plainly
unlawful under FOIA. The attorney work product privilege “is not to protect any interest of the
attorney, who is no more entitled to privacy or protection than any other person, but to protect
the adversary trial process itself.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854,
864 (D.C. Cir. 1980). When the government withholds material pursuant to this privilege that it
previously officially acknowledged, obtained through proffer agreements, and/or concerns
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allegations of extreme governmental misconduct, it would be a perversion of the purpose of FOIA to permit the government to conceal that information from the public. Hiding this information from the American public protects against no relevant harms.
B. Deliberative Process Privilege Exemption 5 also permits an agency to withhold records subject to the deliberative process privilege, which is intended to protect the integrity of the federal government’s decisionmaking process. NLRB, 421 U.S. at 150-51; Wolfe v. Dep’t of Health & Human Servs., 839 F.2d 768, 773-74 (D.C. Cir. 1988). To qualify for the deliberative process privilege, the material at issue must be both “predecisional and deliberative,” meaning that it must have been “generated before the adoption of an agency policy” and “reflect[] the give-and-take of the consultative process.” Coastal States, 617 F.2d at 866. Like all FOIA exemptions, the agency has the burden of proving the exemption applies, and courts must give Exemption 5 a narrow scope, keeping in mind “the basic policy that disclosure, not secrecy, is the dominant objective of” FOIA. Klamath, 532 U.S. at 7-8 (internal marks omitted); Coastal States, 617 F.2d at 868 (Exemption 5 “is to be applied ‘as narrowly as consistent with efficient Government operation.’” (citation omitted)). Here, DOJ redacted 27 responsive 302 reports in part because of the deliberative process privilege. See Ex. A (DOJ list of Exemption 5 withholdings).9 But DOJ cannot meet its burden to show that the 302 reports are “deliberative,” because they do not contain any analysis, suggestions, or recommendations regarding any governmental decision. Instead, they record the
9 As with the 302s redacted pursuant to work product, DOJ has not yet produced to Plaintiffs three of the 302s that it claims to have redacted in part pursuant to the deliberative process privilege. These missing 302s include one for Jared Kushner, reflecting the interview on 4/11/2018, and two 302s for individuals whose names DOJ withheld from Plaintiffs.
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factual statements of third-party witnesses, not government employees. In other words, they do not “reflect[] the give-and-take of the consultative process.” Coastal States, 617 F.2d at 866.
It is well settled that “agency communications containing purely factual material are generally not protected by” the deliberative process privilege. Russell v. Dep’t of Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982). Thus, “Exemption 5 disputes can often be resolved by the simple test that factual material must be disclosed but advice and recommendations may be withheld.” Wolfe, 839 F.2d at 774. Moreover, “a report does not become a part of the deliberative process merely because it contains only those facts which the person making the report thinks material,” so the general rule is that “compilations of facts, devoid of any conclusions, recommendations, opinions or advice” cannot be withheld. Playboy Enters. Inc. v. DOJ, 677 F.2d 931, 935-36 (D.C. Cir. 1982).
Here, the FBI 302 reports at issue are factual accounts of what each interviewee said during questioning. They do not reflect any analysis or recommendations of agents or prosecutors regarding the information provided. The 302 reports consist of “‘raw facts with informational value in their own rights,’ not those that ‘serve primarily to reveal the ‘evaluative’ process by which different members of the decision-making chain arrive at their conclusions and what those pre-decisional conclusions are.’” BuzzFeed, Inc. v. DOJ, 2019 U.S. Dist. LEXIS 208770, at *13 (D.D.C. Dec. 4, 2019) (citation omitted) (noting that “the mere collection of facts does not constitute a privileged decision.”). Accordingly, courts in this Circuit have repeatedly held that the government may not withhold under Exemption 5 factual compilations such as narrative accounts of witness interviews even if the agency compiled the facts as part of its process to determine whether to file criminal charges or impose administrative sanctions. See, e.g., Cornucopia Inst. v. Dep’t of Agric., 2018 U.S. Dist. LEXIS 166173, at *18-19 (D.D.C. Sept.
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27, 2018) (photographs taken to aid agency in evaluating compliance with its regulations were not deliberative); Nat’l Whistleblower Ctr. v. Dep’t of Health & Human Servs., 849 F. Supp. 2d 13, 38 (D.D.C. 2012) (“handwritten notes describing a meeting, phone call, or interview” by HHS Office of Inspector General agents were not deliberative); Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of the Federal Reserve Sys., 762 F. Supp. 2d 123, 137 (D.D.C. 2011) (staffer’s meeting notes “detailing what each of the participants said” were not deliberative).
Additionally, information that appeared in the Mueller Report or that has been otherwise officially acknowledged by the government cannot be withheld under the deliberative process privilege. Protect Democracy Project, Inc. v. Dep’t of Def., 320 F. Supp. 3d 162, 177 (D.D.C. 2018).
C. Presidential Communications Privilege DOJ also claimed the presidential communications privilege under Exemption 5 for information redacted in the same twenty-seven 302s that it redacted pursuant to the deliberative process privilege. The presidential communications privilege applies only to communications among the President or his close advisors in aid of a decision to be made by the President. Judicial Watch, Inc. v. Dep’t of Def., 913 F.3d 1106, 1113-14 (D.C. Cir. 2019). Further, “the presidential communications privilege should be construed as narrowly as is consistent with ensuring that the confidentiality of the President’s decision-making process is adequately protected.” In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997). “[N]o court has suggested that the mere fact that a President’s direct involvement in a communication, either as an author
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or a recipient, renders it automatically protected.” Ctr. for Effective Gov’t v. Dep’t of State, 7 F. Supp. 3d 16, 28 (D.D.C. 2013).
The government can make no credible claim that information collected by a Special Counsel’s office – during an investigation of the President – is subject to the privilege designed to help the President make decisions. While the government has yet to provide any tangible justification for this claim, several deficiencies are obvious. First, it is not clear how the privilege could possibly be retained given that the Special Counsel’s Office obtained the information during its investigation into allegations of misconduct by the President. See generally In re Sealed Case, 121 F.3d at 741 (executive privileges can be waived). Second, several of the 302s redacted pursuant to the privilege reflect interviews with people like Michael Cohen,10 Chris Christie, or Chris Ruddy (CEO of Newsmax Media)—who are not, and never have been, federal government officials. Third, it is difficult to imagine how any of these communications relate to a protectable presidential decision. Fourth, in the text that Plaintiffs can see in these 302s, much of the communications concern activities that took place during the 2016 presidential race – when Donald Trump was merely a candidate for president.
For example:  Michael Cohen, former personal attorney to Donald Trump, August 7, 2018
interview: “Trump Junior said to Trump that he was setting up a meeting in order to get dirt on Hillary Clinton.”; “Regarding the timing of the meeting, Cohen thought it was prior to June 9th, 2016 by a couple of days.”; “Cohen heard [redacted] Trump said, ‘oh good, alright.’” Cohen 8/7/18 Interview at 4, 5, 8, 15. Attached as Ex. L.
10 Each of the interviews Cohen gave to investigators occurred pursuant to a proffer agreement. For the reasons explained above, see supra Part (A)(2), the Court should be especially skeptical of claims of privilege in these records. Cohen voluntarily provided information to investigators, and in doing so, knowingly permitted the government to make derivative use of the information and to otherwise disclose the information he provided.
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 Cohen, September 18, 2018 interview: “The use of the Trump Org’s ‘party line’ with respect to Russia went earlier than the closing of Trump Tower Batumi and Trump Tower Moscow. [Redacted.]”; “Cohen previously talked about this script with Trump. Cohen did not tell Trump he thought the script was untrue because Trump already knew it was untrue.”; “It was not Cohen’s idea to write a letter to congress about Trump Tower Moscow. The statement was put out to piggyback off of Jared Kushner putting out a statement before. The release was to shape the narrative and to let other people who might be witnesses know that Cohen was saying to keep the same message. This was Kushner’s approach to public messaging.”; “Cohen had a second conversation with Trump [redacted] in Trump’s office very soon after Friday, July 22, 2016.11 Trump said to Cohen [redacted.]”; “Cohen was trying to be loyal. The investigation was not supposed to have taken us to where we are today. Cohen was told if he stayed on message, the President had his back, the President loves you.” Cohen 9/18/2018 Interview at 3, 6, 7, 10, 11. Attached as Ex. M.
 Chris Christie, former governor of New Jersey, February 13, 2019 interview: Michael Flynn called Jared Kushner, and “Christie heard Kushner say something like, ‘You know the President respects you. The President cares about you. I’ll get the President to send out a positive tweet about you later.’ Kushner looked at Trump when he said the last part, and Trump nodded his assent. [Redacted.] Trump said, ‘Now that we fired Flynn, the Russia thing is over,’ and Christie laughed.”; “Toward the end of the February 14, 2017 lunch, Trump asked Christie if he was still friendly with (then FBI Director James) Comey, and Christie said that he was. Trump told Christie to call Comey and tell him ‘I really like him. Tell him he’s part of the team. I really like him.’ At the end of the lunch, Trump repeated that Christie should talk to Comey. Christie thought the request was ‘nonsensical’ and that he was never going to do it. Christie just sat there when Trump made the request. He would not put Comey in the position of having to receive that telephone call. [Redacted.] Christie said it would have been uncomfortable to pass on that message. [Redacted.]” Christie 2/13/19 Interview at 3, 4-5. Attached as Ex. N.
 Chris Ruddy, chief executive of Newsmax Media, June 6, 2018 interview: “The day of the PBS interview, Ruddy had a meeting scheduled at the White House with Bannon [redacted] Ruddy, Bannon, [redacted] met, [redacted] Priebus [redacted] joined at some point [redacted.] In the meeting, Priebus and Bannon told Ruddy that Trump was strongly considering firing Mueller [redacted] feared Trump would fire Mueller one day and not tell anyone about it.”; “Ruddy heard
11 Wikileaks released nearly 20,000 emails hacked from the Democratic National Committee on July 22, 2016. See Tom Hamburger and Karen Tumulty, WikiLeaks releases thousands of documents about Clinton and internal emails, Washington Post (July 22, 2016) https://www.washingtonpost.com/news/post-politics/wp/2016/07/22/on-eve-of-democraticconvention-wikileaks-releases-thousands-of-documents-about-clinton-the-campaign-andinternal-deliberations/.
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from friends in the media that Trump [redacted] were upset about Ruddy’s statements. [Redacted] told Ruddy that Trump was upset with him [redacted.]” Ruddy Interview at 5-6. Attached as Ex. O.

DOJ cannot withhold information from Plaintiffs merely because of candidate, President-

elect, or even President Donald Trump’s direct or indirect involvement in the information or

communications regarding it.

CONCLUSION

For all of the foregoing reasons, Plaintiffs respectfully request that this Court enter partial

summary judgment in their favor and enter an Order directing Defendants to release all records

and redacted information improperly withheld under Exemption 5 and to conform any

withholdings and redactions from future productions to the requirements of Exemption 5 as set

forth in the Court’s Order.

Dated: February 3, 2020

Respectfully submitted,

/s/ Charles D. Tobin Charles D. Tobin (D.C. Bar No. 455593) tobinc@balladspahr.com Matthew E. Kelley (D.C. Bar No. 1018126) kelleym@ballardspahr.com BALLARD SPAHR LLP 1909 K Street, NW Washington, D.C. 20006-1157 T: (202) 661-2200 F: (202) 661-2299 Counsel for Cable News Network, Inc.

/s/ Matthew V. Topic Matthew Topic (E-Mail: foia@loevy.com) LOEVY & LOEVY 311 N. Aberdeen, Third Floor Chicago, Illinois 60607 Tel.: (312) 243-5900 Fax: (312) 243-5902 DC Bar No. IL0037 Counsel for Leopold and BuzzFeed, Inc.

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CERTIFICATE OF SERVICE I hereby certify that, on this date, I caused the foregoing to be filed and served electronically via the Court’s ECF System upon counsel of record.

Dated: February 3, 2020

/s/ Charles D. Tobin Charles D. Tobin

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 Case 1:19-cv-01278-RBW Document 86 Filed 09/03/20 Page 1 of 22

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

)

JASON LEOPOLD and

)

BUZZFEED, INC.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 19-1278 (RBW)

)

UNITED STATES DEPARTMENT OF

)

JUSTICE, et al.,

)

)

Defendants.

)

_______________________________________)

)

CABLE NEWS NETWORK,

)

)

Plaintiff,

)

)

v.

)

Civil Action No. 19-1626 (RBW)

)

FEDERAL BUREAU OF INVESTIGATION, )

)

Defendant.

)

_______________________________________)

MEMORANDUM OPINION

The above-captioned matters involve requests made by Jason Leopold and Buzzfeed, Inc.

(the “Leopold plaintiffs”) and Cable News Network (“CNN”) (collectively, the “plaintiffs”)

pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2018), seeking, inter alia,

the release of the typewritten narratives of the FD-302 forms (“FD-302s”) created by the Federal

Bureau of Investigation (the “FBI”) in conjunction with Special Counsel Robert Mueller’s

investigation into Russian interference in the 2016 United States presidential election. See

Complaint (“Compl.”) ¶ 16, Leopold v. U.S. Dep’t of Justice, Civ. Action No. 19-1278

(“Leopold Pls.’ Compl.”); Compl. ¶ 1, Cable News Network v. Fed. Bureau of Investigation,

Case 1:19-cv-01278-RBW Document 86 Filed 09/03/20 Page 2 of 22
Civ. Action No. 19-1626 (“CNN Compl.”).1 Currently pending before the Court are the motions
for partial summary judgment filed by the plaintiffs and the United States Department of Justice
(the “Department”). See generally Memorandum in Support of Plaintiffs’ Motion for Partial
Summary Judgment (“Pls.’ Mem.”); Department of Justice’s Motion for Partial Summary
Judgment in Leopold v. Department of Justice and Cable News Network v. Federal Bureau of
Investigation (“Defs.’ Mot.”). Upon careful consideration of the parties’ submissions,2 the Court
concludes for the following reasons that it must grant the Department’s motion for partial
summary judgment and deny the plaintiffs’ motion for partial summary judgment.
I. BACKGROUND
On March 27, 2019, the Leopold plaintiffs, pursuant to the FOIA, submitted a request to
the FBI, seeking, inter alia, “[a]ll FBI [FD-]302s maintained/stored/in possession of the FBI
relating or referring to all of the individuals who were questioned and interviewed by FBI agents
working for the Office of Special Counsel Robert Mueller during his investigation.” Leopold
Pls.’ Compl. ¶ 16. Previously, on March 21, 2019, the Leopold plaintiffs submitted a similar
1 According to the Department, FD-302s “are investigative records that document factual information elicited from interviewees (e.g., targets, witnesses, others with pertinent information) during FBI criminal and national security investigations.” Department of Justice’s Motion for Partial Summary Judgment in Leopold v. Department of Justice and Cable News Network v. Federal Bureau of Investigation, Exhibit (“Ex.”) 3 (Third Declaration of David M. Hardy) (“Hardy Decl.”). On November 19, 2019, the Court ordered the Department to prioritize its processing and production of the typewritten narratives of the FD-302s and indicated that it would address the processing and production of the handwritten notes and attachments to the typewritten narratives at a later date. See Order at 1 (Nov. 19, 2019), ECF No. 39; see also Order at 1 (Nov. 28, 2019), ECF No. 47; Min. Order (Nov. 20, 2019). 2 In addition to the filings already identified, the Court considered the following submissions in rendering its decision: (1) the Memorandum of Points and Authorities in Support of the Department of Justice’s Motion for Partial Summary Judgment in Leopold v. Department of Justice and Cable News Network v. Federal Bureau of Investigation (“Defs.’ Mem.”); (2) Defs.’ Mot., Ex. 1 (Declaration of Bradley Weinsheimer) (“Weinsheimer Decl.”); (3) id., Ex. 2 (Third Declaration of Vanessa R. Brinkmann) (“Brinkmann 3d Decl.”); (4) the Reply Memorandum in Support of Plaintiffs’ Motion for Partial Summary Judgment and Opposition to Defendant’s Motion for Partial Summary Judgment (“Pls.’ Opp’n”); (5) the Department of Justice’s Reply in Support of its Motion for Partial Summary Judgment (“Defs.’ Reply”); (6) id., Ex. 1 (Fourth Declaration of Vanessa R. Brinkmann) (“Brinkmann 4th Decl.”); (7) the Notice of Supplemental Authority (“Pls.’ 1st Notice”); (8) the Second Notice of Supplemental Authority (“Pls.’ 2d Notice”); (9) the Defendants’ Notice of Supplemental Authority (“Defs.’ Notice”); (10) the Plaintiffs’ Response to Defendants’ Notice of Supplemental Authority (“Pls.’ Resp.”); and (11) the Third Notice of Supplemental Authority (“Pls.’ 3d Notice”).
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request to the Department. Id. ¶ 6. Because neither the Department nor the FBI “issued a determination or produced responsive records,” id. ¶¶ 10, 19, the Leopold plaintiffs filed their Complaint in this Court against the Department, the Office of Attorney General of the United States, the Deputy Attorney General of the United States, the Special Counsel’s Office, and the FBI. See generally id.
On March 26, 2019, CNN also submitted a FOIA request to the Department seeking “copies of FBI memoranda, such as [FD-]302s, from any and all of the interviews of the ‘approximately 500 witnesses’ in the Mueller investigation,” as well as “any and all case files” related to those interviews. CNN Compl. ¶ 11; see also CNN Compl., Exhibit (“Ex.”) A (Letter to David M. Hardy, Chief, Record/Information Dissemination Section, Records Management Division (Mar. 26, 2019)) at 1. According to CNN, the FBI did not “provide[] a response indicating whether it will comply with [CNN’s] [r]equest,” CNN Compl. ¶ 21, but rather indicated that “the records sought involved ‘unusual circumstances’ that will ‘delay [the FBI’s] ability to make a determination,’” id. ¶ 18 (citing id., Ex. B (Letter from David M. Hardy, Section Chief, Record/Information Dissemination Section, Information Management Division (Apr. 25, 2019)) at 1). Consequently, CNN also filed its Complaint against the FBI in this Court. See generally CNN Compl.
On October 3, 2019, the Court consolidated the above-captioned matters to the extent that both plaintiffs are seeking the release of the FD-302s created by the FBI in relation to Special Counsel Mueller’s investigation into Russian interference in the 2016 United States presidential election. See Order at 1 (Oct. 3, 2019), ECF No. 33. The parties subsequently filed their partial cross-motions for summary judgment, addressing only the Department’s withholdings pursuant to Exemption 5 of the FOIA. These motions are the subjects of this Memorandum Opinion.
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II. STANDARD OF REVIEW “FOIA cases typically are resolved on a motion for summary judgment.” Ortiz v. U.S. Dep’t of Justice, 67 F. Supp. 3d 109, 116 (D.D.C. 2014) (citation omitted). The “FOIA requires federal agencies to disclose, upon request, broad classes of agency records unless the records are covered by the statute’s exemptions.” Students Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (citing 5 U.S.C. § 552(a)(3)(A), (b)); see also Wash. Post Co. v. U.S. Dep’t of Justice, 863 F.2d 96, 101 (D.C. Cir. 1988) (citation omitted) (“[The] FOIA is to be interpreted with a presumption favoring disclosure and exemptions are to be construed narrowly.”). In a FOIA action, the defendant agency has “[the] burden of demonstrating that the withheld documents are exempt from disclosure.” Boyd v. U.S. Dep’t of Justice, 475 F.3d 381, 385 (D.C. Cir. 2007) (citation omitted). This burden “cannot be met by mere conclusory statements.” Wash. Post Co., 863 F.2d at 101 (citation omitted). “The agency may meet this burden by filing affidavits describing the material withheld and the manner in which it falls within the exemption claimed,” King v. U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987) (citations omitted), and by “show[ing] how release of the particular material would have the adverse consequence that the Act seeks to guard against,” Wash. Post Co., 863 F.2d at 101 (citation omitted). Courts will grant summary judgment to the government in a FOIA case only if the agency can prove “that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.” Friends of Blackwater v. U.S. Dep’t of Interior, 391 F. Supp. 2d 115, 119 (D.D.C. 2005) (quoting Greenberg v. U.S. Dep’t of Treasury, 10 F. Supp. 2d 3, 11 (D.D.C. 1998)). Thus, in a lawsuit brought to compel the production of documents under the
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FOIA, “an agency is entitled to summary judgment if no material facts are in dispute and if it
demonstrates ‘that each document that falls within the class requested either has been produced
. . . or is wholly[, or partially,] exempt [from disclosure].’” Students Against Genocide, 257 F.3d
at 833 (omission in original) (quoting Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352
(D.C. Cir. 1978)). However, “[t]he burden upon the requester is merely ‘to establish the absence
of material factual issues before a summary disposition of the case could permissibly occur.’”
Pub. Citizen Health Research Grp. v. Food & Drug Admin., 185 F.3d 898, 904–05 (D.C. Cir.
1999) (quoting Nat’l Ass’n of Gov’t Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)).
III. ANALYSIS
The Department has withheld information from the typewritten narratives of the FD-302s
pursuant to Exemption 5 of the FOIA, invoking the attorney work product privilege and the
presidential communications privilege. See Defs.’ Mem. at 1–2.3
Exemption 5 protects “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. §
3 The Department also represents that, pursuant to the deliberative process privilege under Exemption 5, it has withheld information from “three FD-302s summarizing the interviews of former Deputy Attorney Rod Rosenstein, former Acting Assistant Attorney General for National Security Mary McCord [(the “McCord FD-302”)], and Senior Advisor to the President Stephen Miller [(the “Miller FD-302”)],” Brinkmann 3d Decl. ¶ 11, as well as “draft talking points that were attached to the McCord FD-302,” Defs.’ Mem. at 26 (citing Hardy Decl. ¶¶ 8, 12–20. The plaintiffs only challenge the Department’s withholding of information pursuant to the deliberative process privilege from the Miller and McCord FD-302s. See Pls.’ Opp’n at 22 (claiming that “[t]he description of Miller’s conversation with then-Attorney General Sessions is insufficient to show that the information is protected by the deliberative process privilege”); id. at 22–23 (quotation omitted) (arguing that the Department “vaguely asserts that the information withheld from the 302 of then-Acting Assistant Attorney General for National Security Mary McCord involved discussions among select Executive Branch employees of ‘rationales, opinions[,] and alternative to specific issues,’” and that this “is insufficient to meet the [Department’s] burden”). Because the Department has since withdrawn its reliance on Exemption 5 for the McCord FD-302 and has represented that it will be reprocessed and produced to the plaintiffs, and because the Department represents that the information withheld from the Miller FD-302 “is also protected under Exemption 5 as attorney work product,” Defs.’ Reply at 20, which the Court finds is appropriate, infra Part III.A., the Court need not address the Department’s withholdings pursuant to the deliberative process privilege, see Larson v. U.S. Dep’t of State, 565 F.3d 857, 862–63 (D.C. Cir. 2009) (citing Gardels v. Cent. Intelligence Agency, 689 F.2d 1100, 1106–07 (D.C. Cir. 1982) (“[C]ourts may uphold agency action under one exemption without considering the applicability of the other.”).
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552(b)(5). To be covered by Exemption 5, a document’s “source must be a [g]overnment
agency, and it must fall within the ambit of a privilege against discovery under judicial standards
that would govern litigation against the agency that holds it.” Dep’t of Interior & Bureau of
Indian Affairs v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001); see also Burka v.
Dep’t of Health & Human Servs., 87 F.3d 508, 516 (D.C. Cir. 1996) (“[T]he parameters of
Exemption 5 are determined by reference to the protections available to litigants in civil
discovery; if material is not ‘available’ in discovery, it may be withheld from FOIA
requesters.”). “Exemption 5 incorporates the privileges that the [g]overnment may claim when
litigating against a private party, including the . . . attorney work product privilege[] [and] the
presidential communications privilege[.]” Abtew v. U.S. Dep’t of Homeland Sec., 808 F.3d 895,
898 (D.C. Cir. 2015) (citation omitted).
The Court will address the Department’s withholdings pursuant to the attorney work product privilege and presidential communications privilege in turn.4
4 As a general matter, the Court rejects the plaintiffs’ argument that the Department’s withholdings “do not protect any reasonably foreseeable harm to the interests protected by Exemption 5.” Pls.’ Mem. at 7. With respect to the attorney work product privilege, the Department represents that “[g]iven the unique structure of the Special Counsel’s Office, as well as the role of attorneys at every investigative phase, including witness interviews, disclosing the contents of the FD-302s at issue here would [ ] indirectly reveal the mental impressions, assessments, and thought processes of the attorneys involved in the investigation and of the Special Counsel in particular, contrary to the purpose of the attorney work product doctrine,” which would “inhibit the flexibility with which future special counsels might structure and pursue investigations.” Weinsheimer Decl. ¶ 38. And, as to the presidential communications privilege, the Department represents that disclosure of communications intended to advise the President and allow him to discharge his duties under Article III of the Constitution would stifle the Presidents and their advisers from being able “to confidently engage in confidential decision-making without fear that their deliberations will be open to public view,” and that “[c]andid discussions will naturally be chilled or inhibited, and the efficiency of government policy making would suffer.” Brinkmann 3d Decl. ¶ 32. The Department further represents that “disclosing transition deliberations would jeopardize the ability of future Presidents-elect to have full and candid discussions with their advisers” and “would undermine the ability to protect the confidentiality of discussions on the same matters after the President-elect takes office and further damage the quality of presidential decision-making.” Id. The Court concludes that the Department has sufficiently identified the foreseeable harm that would result if the information withheld pursuant to the attorney work product privilege and the presidential communications privilege were disclosed.
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A. Attorney Work Product Privilege The attorney work product privilege “shields materials prepared in anticipation of
litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” McKinley v. Bd. of Governors of the Fed. Reserve Sys., 647 F.3d 331, 341 (D.C. Cir. 2011) (internal quotations and citation omitted). This privilege protects “factual materials prepared in anticipation of litigation, as well as mental impressions, conclusions, opinions, and legal theories.” Heggestad v. U.S. Dep’t of Justice, 182 F. Supp. 2d 1, 8 (D.D.C. 2000) (citing Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 620 (D.C. Cir. 1997)).
Here, the information withheld by the Department from the FD-302s pursuant to Exemption 5 based on the attorney work product privilege falls squarely within the scope of the privilege. According to the Department, the Special Counsel’s Office, which was staffed with attorneys and FBI investigative personnel who were “assigned to work under the direction of the Special Counsel,” Weinsheimer Decl. ¶ 26, conducted approximately 500 witness interviews during its investigation into Russian interference in the 2016 United States presidential election, see id. ¶ 20, “for the purpose of gathering or otherwise assessing the extent to which evidence could be obtained to support criminal charges and that therefore could be presented to a grand jury and at trial,” id. ¶ 25, and in anticipation of “the potential for criminal charges,” id. ¶ 21.
The plaintiffs argue that the “[FD-]302[s] [ ] are not subject to work product protection” because “the Special Counsel prosecutors themselves ‘did not consider FD-302s as their work product’” and “treated the FD-302s as the FBI’s document[s].” Pls.’ Opp’n at 6 (quoting
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Weinsheimer Decl. ¶ 34).5 However, although “FBI investigative personnel drafted the FD-302s,” the Department represents that “attorneys would review the draft FD-302 and, if necessary, suggest edits.” Weinsheimer Decl. ¶ 31. The Department further represents that “[i]n addition to participating in the selection of these witnesses for interviews, prosecutors discussed and determined . . . the investigative strategy for witness interviews,” id. ¶ 26, that, “[a]s a general matter, outlines were prepared prior to the witness interview,” id. ¶ 27, either by an attorney or by an FBI investigative personnel with edits and comments from an attorney, see id., and that the “[a]ttorneys led, participated in, or attended all the interviews for which the [Department] has asserted the attorney work product doctrine,” id. ¶ 26. And, “[i]n the FOIA context, [the District of Columbia Circuit] ha[s] long held that documents prepared by non-attorneys in anticipation of litigation may also be protected by the privilege.” Judicial Watch, Inc. v. U.S. Dep’t of Justice, 806 F. App’x 5, 6–7 (D.C. Cir. 2020) (citations omitted) (concluding that, in light of the facts that “the information captured in the [ ] FD-302s was ‘obtained because of the prospect of litigation,’ . . . [t]he interviews were ‘conducted at the direction of the career [Department] prosecutors assigned,’ [ ] prosecutors participated in determining the investigative strategy for each interview and in questioning the witnesses, [and] . . . all of the [Assistant United States Attorneys] on the investigation team reviewed the FD-302s at issue,” the FD-302s “fit within the attorney work[ ]product privilege for purposes of Exemption 5” because they reflected “‘the thoughts and opinions of counsel developed in
5 The plaintiffs further argue that the “information provided in witness proffer statements is not attorney work product,” and that “when entering into a proffer agreement and disclosing information to investigators, witnesses waive any privilege that might exist in the information provided.” Pls.’ Mem. at 14 (capitalization removed). However, the Court concludes that this argument is without merit. As the Department correctly notes, “the FD-302s constitute work product regardless of whether the interview was conducted pursuant to a witness proffer agreement.” Defs.’ Mem. at 44. The plaintiffs do not cite—and the Court is unable to locate—any authority suggesting that FD-302s summarizing interviews conducted pursuant to a witness proffer agreement would somehow lose their characterization as attorney work product by the sheer fact that the interview was conducted pursuant to a witness proffer agreement.
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anticipation of litigation’ so as to fall within the attorney work[ ]product privilege” (quoting United States v. Deloitte LLP, 610 F.3d 129, 136 (D.C. Cir. 2010))). In fact, because “attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial[,]” the Supreme Court has stated that “[i]t is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.” United States v. Nobles, 422 U.S. 225, 238–39 (1975). Where, as here, “[l]aw enforcement agents . . . [were] acting in a supportive role to an attorney preparing a case for indictment or prosecution, the attorney work[ ]product protection applies to their work product under FOIA Exemption 5.” Judicial Watch, Inc. v. U.S. Dep’t of Justice, 391 F. Supp. 3d 43, 52 (D.D.C. 2019), aff’d, 806 F. App’x 5 (D.C. Cir. 2020).
The plaintiffs further argue that the FD-302s are not protected by the attorney work product privilege because, “although the questioning of the witnesses was often directed by government attorneys, the FBI agents responsible for the content of the [FD-]302[s] [ ] were specifically required to exclude prosecutors’ ‘impressions, opinions or analyses.’” Pls.’ Opp’n at 7 (quoting Hardy Decl. ¶ 7 n.2). However, the plaintiffs ignore that the FD-302s, as “factual recitations of what occurred during the interview,” Weinsheimer Decl. ¶ 38, are also protected by the attorney work product privilege, see Heggestad, 182 F. Supp. 2d at 8; see also Tax Analysts, 117 F.3d at 620 n.11 (alteration in original) (“Federal Rule of Civil Procedure 26(b)(3) allows discovery of materials prepared in anticipation of litigation only upon a showing of ‘substantial need,’ but in all cases ‘the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney . . . concerning the litigation.’ The point of the rule is that while all materials prepared in anticipation of litigation are work product and protected from discovery by other parties, a sufficient showing of need may overcome that
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protection with respect to factual materials, but not with respect to deliberative materials. This does not mean that factual materials are not work product; it means only that they receive a lower degree of protection under the Federal Rules than deliberative work product.” (alteration in original)); Williams & Connolly v. Sec. Exch. Comm’n, 662 F.3d 1240, 1243 (D.C. Cir. 2011) (“Although work product protection may be overcome for cause in civil cases, any materials disclosed for cause are not ‘routinely’ or ‘normally’ discoverable and, for that reason, are exempt under [the] FOIA.” (citations omitted)). Accordingly, to the extent that the information contained in the FD-302s are factual in nature, they are nevertheless protected by the attorney work product privilege and are exempt from disclosure pursuant to Exemption 5 of the FOIA.
The plaintiffs also claim that applying the attorney work product privilege to the FD-302s is inappropriate because “the [FD-]302[s] [ ] would be provided to criminal defendants in discovery.” Pls.’ Opp’n at 6–7 (first citing Weinsheimer Decl. ¶ 34, then citing Hardy Decl. ¶ 7 n.2). However, “[t]he decision of the [ ] Department to disclose the . . . [FD-302s] in [a] criminal proceeding has no bearing on whether [the] FOIA permits the [Department] to withhold [such information].” Williams & Connolly, 662 F.3d at 1244. In fact, “[i]n criminal trials, evidentiary privileges may give way for any number of reasons,” id. (citation omitted), and “disclosure in criminal trials is based on different legal standards than disclosure under [the] FOIA, which turns on whether a document would usually be discoverable in a civil case,” id. at 1245. Therefore, contrary to the plaintiffs’ assertion, the FD-302s are accorded protection from disclosure by Exemption 5.
The plaintiffs also contend that the Department has “waived th[e] [attorney work product] privilege with respect to much of [its] redactions” because the Department “officially
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acknowledged [the redacted information] in the Mueller Report.” Pls.’ Mem. at 10.6 Although the Department “cannot rely on an otherwise valid exemption claim to justify withholding information that has been ‘officially acknowledged’ or is in the ‘public domain,’” Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1279 (D.C. Cir. 1992) (citing Afshar v. Dep’t of State, 702 F.2d 1125, 1130–34 (D.C. Cir. 1983)), “the fact that information exists in some form in the public domain does not necessarily mean that official disclosure will not cause harm cognizable under a FOIA exemption,” Wolf v. Cent. Intelligence Agency, 473 F.3d 370, 378 (D.C. Cir. 2007) (citation omitted), and “a plaintiff asserting a claim of prior disclosure must bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld,” Afshar, 702 F.2d at 1130; see also Wolf, 473 F.3d at 378 (“[T]he inquiry turns on the match between the information requested and the content of the prior disclosure.”). Here, the plaintiffs provide “a non-exhaustive list of some of the key, substantive information [that] the [Department allegedly] improperly redacted from the[] [FD-302s],” Pls.’ Mem. at 11, as well as “a spreadsheet detailing each found instance of material that is redacted from the[] [FD-]302s but is cited in the Mueller Report,” id. at 11 n.6. However, the plaintiffs presuppose that the FD302s “appear[ ] to duplicate that being withheld,” Afshar, 702 F.2d at 1130, “mirror precisely the information that [they have] requested,” Cottone v. Reno, 193 F.3d 550, 555 (D.C. Cir. 1999), or “precisely track the records sought to be released,” Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 60 (D.C. Cir. 2003). Moreover, the plaintiffs also fail to
6 The plaintiffs further claim that the Department’s “presentation[ ] at the various criminal trials stemming from the Special Counsel’s investigation represent official acknowledgments of information contained in the [FD-]302s at issue,” and that the Department “should be directed to provide this information as well.” Pls.’ Mem. at 13 n.7. However, the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld is on the plaintiffs, see Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1279 (D.C. Cir. 1992) (citation omitted) (stating that the burden is on the plaintiff because “the task of proving the negative—that information has not been revealed—might require the government to undertake an exhaustive, potentially limitless search.”), and this broad and conclusory allegation fails to meet that burden.
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adequately disprove the Department’s representation that it “did not withhold any information pursuant to Exemption 5 that is waived by its release in the Mueller Report.” Brinkmann 3d Decl. ¶ 40. According to the Department, “[i]f the information in a given FD-302 was as specific as that information released in the Mueller Report, . . . that information was released in the FD302s produced to [the] [p]laintiffs in this litigation,” but that “[i]f the information released in the Mueller Report did not match the information in a given FD-302, then [it was] determined that the Department had not waived its ability to withhold the information pursuant to FOIA Exemption 5.” Id. ¶ 39. Contrary to the plaintiffs’ claim that the Department’s “narrow, wordfor-word filter violates FOIA’s official acknowledgment waiver doctrine,” Pls.’ Opp’n at 11, the Department only maintains that information was withheld pursuant to the attorney work product privilege “if releasing a portion of a given FD-302 would provide the public with new information that was not revealed in the redacted Mueller Report,” Brinkmann 3d Decl. ¶ 39. Because the plaintiffs have offered no basis to discredit the Department’s representations, Brinkmann’s third declaration must be accorded the “presumption of good faith” that attaches to agency declarations in FOIA actions.7 SafeCard Servs., Inc. v. Sec. Exchange Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Therefore, the Court rejects the plaintiffs’ argument that the Department waived the attorney work product privilege because of information contained in the Mueller Report. Cf. Protect Democracy Project, Inc. v. U.S. Nat’l Sec. Agency, Civ. Action No. 17-1000 (CKK), 2020 WL 1331996, at *10 (D.D.C. Mar. 23, 2020) (holding that the plaintiff did not show that the government officially acknowledged information such that disclosure of the
7 Because the plaintiffs have not rebutted this presumption of good faith, the Court will deny the plaintiffs’ “request that the Court perform an in camera review of the Kaveladze, Beniaminov, Rtskhiladze, and Gerson [FD-]302[s] [ ] . . . to determine whether the substance of the withheld material aligns with the information published in the Mueller Report.” Pls.’ Opp’n at 13.
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information is appropriate over an otherwise valid exemption claim because “the information disclosed and released in the Mueller Report is not sufficiently specific”).
The plaintiffs also argue that “[i]n the event the Court determines [that the Department] did not waive th[e] [attorney work product] privilege, [the Department] must still disclose the information because it provides evidence of extreme governmental misconduct.” Pls.’ Mem. at 10. Specifically, the plaintiffs claim that the government misconduct exception applies because “[t]he details recounted in these [FD-]302s concern allegations of the most extreme government misconduct”—“the Trump Tower Moscow project and the June 9, 2016 Trump Tower meeting.” Id. at 17. To invoke government misconduct as grounds to defeat the attorney work-product privilege, “the [plaintiffs] must establish more than a bare suspicion in order to obtain disclosure,” but rather “must produce evidence that would warrant a belief by a reasonable person that the alleged [g]overnment impropriety might have occurred.” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004); see also SafeCard Servs., 926 F.2d at 1205–06 (“[U]nless there is compelling evidence that the agency denying the FOIA request is engaged in illegal activity[,] . . . there is no reason to believe that the incremental public interest in such information would ever be significant.”); Moody v. Internal Revenue Servs., 654 F.2d 795, 800 (D.C. Cir. 1981) (recognizing that “at least in some circumstances, a lawyer’s unprofessional behavior may vitiate the work product privilege”). However, the plaintiffs’ “allegation[s] do[] not concern any allegedly egregious discussion [regarding what the Department has] withh[e]ld[], but rather allegedly egregious underlying conduct;” therefore, the plaintiffs’ “effort to avail [themselves] of the government misconduct exception accordingly is suspect[.]” Judicial Watch, Inc. v. U.S. Dep’t of State, 285 F. Supp. 3d 249, 255 (D.D.C. 2018); see also Bartko v. U.S. Dep’t of Justice, Civ. Action No. 13-1135 (JEB), 2014 WL 12787631, at
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*8 (D.D.C. Oct. 8, 2014) (citation omitted) (“[I]t is not enough for [the plaintiff] to allege general malfeasance in his prosecution; instead, he must show that the exempted records themselves constitute or are the fruit of wrongdoing. This he has not done. None of his atmospheric claims of wrongdoing calls into question the propriety of any individual withheld record. [The plaintiff], moreover, cannot make a blanket allegation of attorney misconduct in the hopes of uncovering evidence of that misconduct, as he seeks to do here.”). The plaintiffs have failed to produce any evidence showing “that the [Department] [handling its] FOIA request is engaged in illegal activity,” SafeCard Servs., 926 F.2d at 1205–06, or “unprofessional behavior [on the part of the Department’s lawyers that] [would] vitiate the work product privilege,” Moody, 654 F.2d at 800. Lacking any such evidence of misconduct on the part of the Department, the plaintiffs’ argument must be rejected.8
In sum, the Court concludes that the Department appropriately withheld information from the FD-302s pursuant to the attorney work product privilege and must therefore grant the Department’s motion for partial summary judgment and deny the plaintiffs’ motion for partial summary judgment as to the Department’s withholdings pursuant to the attorney work product privilege. B. Presidential Communications Privilege
According to the Department, it has “withheld three types of communications under the presidential communications privilege: (1) communications between [g]overnment officials or staff during the [a]dministration in connection with presidential decision-making;
8 The plaintiffs also claim that they “are [ ] especially concerned by [the Department’s] pattern of redacting negative information while disclosing to [the] [p]laintiffs information favorable or benign to the Trump Administration” and that “[s]elective disclosures of favorable information to a government official is plainly unlawful under [the] FOIA.” Pls.’ Mem. at 18. However, while the plaintiffs’ position is understandable, under the current state of the law, they have failed to provide the Court with sufficient evidence that calls into question the Department’s redactions in this case. Therefore, the plaintiffs’ argument is not supported by the record or existing law on the subject.
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(2) communications between transition officers or staff which concern potential presidential decisions after the [i]nauguration; and (3) communications involving private parties concerning presidential decision-making.” Defs.’ Mem. at 19. Because the Department represents that “the only FD-302s for which [the Department] redacted information under the presidential communications privilege but not under the attorney work product doctrine are the FD-302s memorializing the interviews of [ ] Rosenstein, [Michael] Cohen, and [Deputy National Security Advisor K.T.] McFarland,” Defs.’ Reply at 12 n.5 (citing Brinkmann 3d Decl., Ex. A (OIP Vaughn Index)), the Court will therefore only focus on the Department’s withholding of information from the FD-302s memorializing McFarland’s October 17, 2017 and September 14, 2017 interviews (“McFarland FD-302s”), the FD-302 memorializing Rosenstein’s May 23, 2017 interview (“Rosenstein FD-302”), and the FD-302 memorializing Cohen’s August 7, 2018 interview (“Cohen FD-302”).
The presidential communications privilege “protects ‘communications directly involving and documents actually viewed by the President,’ as well as documents ‘solicited and received’ by the President or his ‘immediate White House advisers [with] . . . broad and significant responsibility for investigating and formulating the advice to be given the President.’” Loving v. U.S. Dep’t of Defense, 496 F. Supp. 2d 101, 107 (D.D.C. 2007), aff’d, 550 F.3d 32 (D.C. Cir. 2008) (alteration in original) (quoting Judicial Watch, Inc. v. U.S. Dep’t of Justice, 365 F.3d 1108, 1114 (D.C. Cir. 2004)). As this Circuit has explained, “[t]he privilege covers documents reflecting ‘presidential decision[-]making and deliberations,’ regardless of whether the documents are predecisional or not[.]” Loving, 550 F.3d at 37–38 (quoting In re Sealed Case, 121 F.3d 729, 744–45 (D.C. Cir. 1997)); see also Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 449 (1977) (stating that the privilege is “limited to communications ‘in performance of [a
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President’s] responsibilities’ ‘of his office,’ and made ‘in the process of shaping policies and making decisions.’” (citations omitted)).
As an initial matter, the Court notes that, contrary to the plaintiffs’ positions, see Pls.’ Opp’n at 16 (“The President himself specifically and publicly waived any executive privilege during the Mueller investigation[.]”); id. at 21 (arguing that “the privilege cannot apply because the President has not personally asserted it”), the presidential communications privilege has not been waived and need not be personally asserted by the President to apply. Courts in this district have routinely concluded that it is not required that the President personally invoke the presidential communications privilege for the privilege to apply under Exemption 5 in FOIA cases. See, e.g., Buzzfeed, Inc. v. Fed. Bureau of Investigation, Civ. Action No. 18-2567 (BAH), 2020 WL 2219246, at *13–14 (D.D.C. May 7, 2020) (citation omitted) (“Judges on this Court [ ] have consistently rejected the argument that personal invocation is required to apply the presidential communications privilege in the context of Exemption 5.”); Am. Ctr. for Law & Justice v. United States Dep’t of State, 330 F. Supp. 3d 293, 308–09 (D.D.C. 2018) (concluding that personal assertion of the presidential communications privilege by the President is not required under the FOIA because withholding documents in response to a FOIA request is materially different than a privilege asserted in civil discovery); Elec. Privacy Info. Ctr. v. U.S. Dep’t of Justice, 584 F. Supp. 2d 65, 80 (D.D.C. 2008) (concluding that “the presidential communications privilege does not need to be asserted by the President himself” to withhold documents under Exemption 5 in a FOIA case); Loving, 496 F. Supp. 2d at 108 (D.D.C. 2007) (“[P]ersonal invocation is not required as to FOIA requests.”); Lardner v. U.S. Dep’t of Justice, Civ. Action No. 03-0180 (JDB), 2005 WL 758267, at *7 (D.D.C. Mar. 31, 2005) (“[T]he personal invocation of the presidential communications privilege is [ ] a civil discovery rule that
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should not be imported into the FOIA analysis.”). Furthermore, although the plaintiffs claim that the President has waived the executive privilege by publicly stating that he “had the RIGHT to use [e]xecutive [p]rivilege,” but that he “did[] n[o]t!” Pls.’ Opp’n at 16 (quoting @realDonaldTrump, Twitter (Apr. 18, 2019, 5:31 PM), https://twitter.com/realdonaldtrump/status/1118990550235877376), they have not provided the context in which the President’s statement was made to suggest that his statement was made in reference to the specific invocation of the presidential communications privilege. Therefore, because the President “did not explicitly declare that [he] . . . would forego any and all claims of privilege that might apply to the [FD-302s],” In re Sealed Case, 121 F.3d at 740, and because “a waiver [of this privilege] should not be lightly inferred,” id. at 741 (quoting SCM Corp. v. United States, 82 Cust. Ct. 351, 356 (1979)); see also Nixon v. Sirica, 487 F.2d 700, 717 (D.C. Cir. 1973) (concluding that President Nixon’s statement that “[e]xecutive privilege will not be invoked” did not constitute a waiver of the executive privilege), the Court concludes that the President did not waive the presidential communications privilege in regard to the information withheld by the Department.
Here, the information withheld pursuant to the presidential communications privilege from the McFarland FD-302s, the Rosenstein FD-302, and the Cohen FD-302 are clearly protected by the privilege. The Department’s representations show that it withheld descriptions of communications that involve the President or his advisers. According to the Department, the information withheld from the McFarland FD-302s and the Rosenstein FD-302 either falls within the Department’s first or second categories of communications—communications between government officials or staff during the administration in connection with presidential decisionmaking, and communications between transition officers or staff that concern potential
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presidential decisions after the inauguration, respectively, see Brinkmann 3d Decl., Ex. A (OIP
Vaughn Index) at 1–2, while the information withheld from the Cohen FD-302 falls within the
third category of communications—communications involving private parties concerning
presidential decision-making, see id., Ex. A (OIP Vaughn Index) at 1; Brinkmann 4th Decl. ¶ 5.9
In regard to the first category, the Department represents that it withheld information that
“described communications with immediate advisers in the Office of the President, and, in some
instances, with the President himself,” Defs.’ Mem. at 20 (citing Brinkmann 3d Decl. ¶ 21), and
that
[t]hese communications involved at least one of the following individuals: President Donald Trump; Vice President Michael Pence; Chief of Staff John Kelly; Chief of Staff Reince Priebus; Counsel to the President Donald McGahn; National Security Advisor Michael Flynn; Special Counsel to the President Emmett Flood; Press Secretary Sean Spicer; Deputy Press Secretary (and later, Press Secretary) Sarah Huckabee Sanders; Staff Secretary Robert Porter; Chief Strategist and Senior Adviser to the President Stephen Bannon; Deputy Chief of Staff Richard Dearborn; Deputy Counsel to the President and Legal Adviser to the National Security Council John Eisenberg; Deputy National Security Advisor K.T. McFarland; Deputy Counsel to the President Uttam Dhillon; Chief of Staff to the Counsel to the President Annie Donaldson; Senior Advisor to the President Jared Kushner; Senior Advisor to the President Ivanka Trump; Director of Strategic Communications (and later, Director of Communications) Hope Hicks; and Senior Advisor to the President Stephen Miller[,]
id. (citing Brinkmann 3d Decl. ¶ 22). According to the Department, the third category of
information withheld describes communications between a private party and one or more of the
individuals listed above. See Defs.’ Mem. at 24; see also Brinkmann 3d Decl. ¶¶ 27, 29. As to
the second category, the Department represents it withheld information describing
communications “between [t]ransition officials or staff . . . , where at least one party to the
9 The Court notes that the Department’s representations in the fourth Brinkmann declaration has mooted the plaintiffs’ argument that it is “difficult to understand exactly what privilege categories even apply to which redactions.” Pls.’ Opp’n at 20. In this declaration, the Department represents that information was withheld pursuant to the presidential communications privilege “only to particular, discrete portions” appearing on FBI Bates pages 650 through 653 of the Rosenstein FD-302 and on FBI Bates page 444 of the Cohen FD-302. See Brinkmann 4th Decl. ¶ 5.
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communication is either the President-elect himself, a [t]ransition official who has been designated to be an immediate adviser to the President-elect, or a member of the staff of such an official,” Defs.’ Mem. at 22 (citing Brinkmann 3d Decl. ¶ 24), and that these communications
included one or more of the following individuals: President-elect Donald Trump; Vice President-elect and Transition Chair Michael Pence; Transition Vice Chair Jefferson Sessions; Transition Vice-Chair and National Security Adviser designate Michael Flynn; Transition Vice-Chair and Deputy National Security Advisor-designate K.T. McFarland; Transition Executive Committee and Chief of Staff-designate Reince Priebus; and members of the Transition Executive Committee, Ivanka Trump, Jared Kushner, Stephen Bannon, and Kellyanne Conway[,] id. (citing Brinkmann 3d Decl. ¶ 25). All three of the Department’s categories describe communications that involve the types of advisers—individuals with “broad and significant responsibility for investigating and formulating the advice to be given the President,” see Loving, 550 F.3d at 37 (citation omitted)—contemplated as being covered by the presidential communications privilege. Contrary to the plaintiffs’ argument that “several of the [FD-]302s redacted pursuant to the [presidential communications] privilege reflect interviews with people . . . who are not, and never have been, federal government officials,” Pls.’ Mem. at 22; see also Pls.’ Opp’n at 20 (internal quotation marks and citation omitted) (arguing that “it is simply implausible that the President’s former personal lawyer [is a] member[] of an immediate White House adviser’s staff who ha[s] broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate” (internal quotation marks omitted)), “communications made by presidential advisers in the course of preparing advice for the President come under the presidential communications privilege even when these communications are not made directly to the President,” and “‘[g]iven the need to provide sufficient elbow room for advisers to obtain information from all knowledgeable
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sources,’ the [presidential communications] privilege must apply both to communications which these advisers solicited and received from others as well as those they authored themselves,” and “also extend[s] to communications authored or received in response to a solicitation by members of a presidential adviser’s staff[.]” In re Sealed Case, 121 F.3d at 752 (emphasis added).
The plaintiffs also challenge the Department’s withholdings, arguing that the Department “makes the blanket claim [that] all of these communications involve matters of presidential decision[]making.” Pls.’ Opp’n at 18. The Court concludes, however, that the Department’s representations sufficiently establish that the withheld information concerned presidential decision-making and deliberations. The plaintiffs fail to acknowledge the Department’s representation that the subjects of the communications withheld under the presidential communications privilege “related to the following areas of actual or potential presidential decision-making:” (1) “[p]ossible actions to be taken in the conduct of foreign relations,” (2) “[p]ossible actions to be taken with respect to nomination, appointment or removal of presidential appointees,” (3) “[p]ossible presidential action documents (whether styled as Executive Orders, Presidential Memoranda, Proclamations, National Security Presidential Memoranda, or other forms),” and (4) “[p]ossible official public statements, which the President personally participated in developing or was anticipated to participate in developing.” Brinkmann 3d Decl. ¶¶ 23, 26, 30.10 And, deliberations about such decisions are protected by the presidential communications privilege because they involve official government matters. Cf. In re Sealed Case, 121 F.3d at 758 (determining that press briefings fell within the presidential communications privilege); Protect Democracy Project, 2020 WL 1331996, at *5 (finding that a
10 The Court notes that the Department’s representation that the withheld information pertains to communications concerning “[p]ossible official public statements, which the President personally participated in developing or was anticipated to participate in developing,” only applies to information withheld under the first and third categories. See Brinkmann 3d Decl. ¶¶ 23, 30.
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communication “that directly related to presidential decision-making with respect to foreign relations” falls within the presidential communications privilege); Judicial Watch, Inc. v. Consumer Fin. Prot. Bureau, 60 F. Supp. 3d 1, 13 (D.D.C. 2014) (“Communications generated in the course of advising the President in the exercise of his appointment and removal power are clearly protected by the presidential communications privilege. The appointment and removal power are ‘a quintessential and nondelegable Presidential power . . . [T]he President himself must directly exercise the presidential power of appointment or removal. As a result, in this case there is assurance that even if the President were not a party to the communications over which the government is asserting presidential privilege, these communications nonetheless are intimately connected to his presidential decision[-]making.’” (quoting In re Sealed Case, 121 F.3d at 752–53)). Moreover, contrary to the plaintiffs’ argument that the Department’s description of communications concerning “[p]ossible official public statements . . . is simply too conclusory to meet [the Department’s] burden or to allow [the] [p]laintiffs or the Court to determine whether they are actually the kinds of official decisions that the privilege protects,” Pls.’ Opp’n at 19,11 the Department’s declaration is sufficiently specific for the Court to conclude that the Department has appropriately withheld information pursuant to the presidential communications privilege because, as the Department represents, the withheld information describes communications concerning “possible official public statements[] [that] the President personally participated in developing or was anticipated to participate in developing,”
11 The plaintiffs also claim that “reading many of the redactions in context strongly suggests that [the Department] has withheld information unrelated to any presidential decisions or ‘official’ presidential public statements.” Pls.’ Opp’n at 19. However, as previously noted, absent a showing of bad faith, see SafeCard Servs., 926 F.2d at 1200, the Court must accord the “presumption of good faith” to the Department’s representation that the information withheld pursuant to the presidential communications privilege pertains to “matters of presidential decision-making,” Brinkmann 3d Decl. ¶ 20.
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Brinkmann 3d Decl. ¶¶ 23, 30, which is an “official government matter[]” that falls within the privilege, In re Sealed Case, 121 F.3d at 752.
In sum, the Court concludes that the Department’s withholdings pursuant to the presidential communications privilege are appropriate and must therefore grant the Department’s motion for partial summary judgment and deny the plaintiffs’ motion for partial summary judgment as to the Department’s withholdings pursuant to the presidential communications privilege.
IV. CONCLUSION For the foregoing reasons, the Court concludes that the Department has appropriately withheld information from the FD-302s pursuant to Exemption 5 of the FOIA. Accordingly, the Court will grant the Department’s motion for partial summary judgment and deny the plaintiffs’ motion for partial summary judgment. SO ORDERED this 3rd day of September, 2020.12
REGGIE B. WALTON United States District Judge
12 The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
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 Case 1:19-cv-01278-RBW Document 104 Filed 10/09/20 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

)

JASON LEOPOLD and

)

BUZZFEED, INC.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 19-1278 (RBW)

)

UNITED STATES DEPARTMENT OF

)

JUSTICE, et al.,

)

)

Defendants.

)

_______________________________________)

)

CABLE NEWS NETWORK,

)

)

Plaintiff,

)

)

v.

)

Civil Action No. 19-1626 (RBW)

)

FEDERAL BUREAU OF INVESTIGATION, )

)

Defendant.

)

_______________________________________)

ORDER

Upon consideration of the Defendant’s Sealed Notice of Compliance with Court Order, it

is hereby

ORDERED that, on or before October 30, 2020, the United States Department of Justice

shall make a good faith effort to complete its review of and produce to the plaintiffs as many

non-exempt portions as possible of the typewritten narratives of the FD-302 forms that it

identified on the list filed under seal to the Court on October 7, 2020. It is further

Case 1:19-cv-01278-RBW Document 104 Filed 10/09/20 Page 2 of 2 ORDERED that, on November 4, 2020, at 2:00 p.m., the parties shall appear before the Court for a status conference via teleconference by calling 1-877-873-8017 and entering the Court’s access code (8583213) followed by the pound key (#). SO ORDERED this 9th day of October, 2020.
REGGIE B. WALTON United States District Judge
2

 
 Case 1:19-cv-01278-RBW Document 119 Filed 12/07/20 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

)

JASON LEOPOLD and

)

BUZZFEED, INC.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 19-1278 (RBW)

)

UNITED STATES DEPARTMENT OF

)

JUSTICE, et al.,

)

)

Defendants.

)

_______________________________________)

)

CABLE NEWS NETWORK,

)

)

Plaintiff,

)

)

v.

)

Civil Action No. 19-1626 (RBW)

)

FEDERAL BUREAU OF INVESTIGATION, )

)

Defendant.

)

_______________________________________)

ORDER

In accordance with the oral rulings issued by the Court at the status conference held on

December 4, 2020, via teleconference, it is hereby

ORDERED that, on or before January 15, 2021, in light of the grant of a full and

unconditional pardon to General Michael T. Flynn by the President and General Flynn’s

acceptance of the pardon, to the extent that any typewritten narratives of the FD-302 forms

created by the Federal Bureau of Investigation (“FBI”) in conjunction with Special Counsel

Robert Mueller’s investigation into Russian interference in the 2016 United States presidential

election concern General Flynn, the United States Department of Justice (the “Department”)

Case 1:19-cv-01278-RBW Document 119 Filed 12/07/20 Page 2 of 2
shall (1) re-process the typewritten narratives and (2) produce to the plaintiffs all non-exempt portions of the re-processed typewritten narratives. It is further
ORDERED that, until otherwise ordered by the Court, the Department shall, on a monthly basis, process at least five hundred (500) pages of the remaining records responsive to the plaintiffs’ requests for the FD-302 forms created by the FBI in conjunction with Special Counsel Mueller’s investigation (unless fewer than five hundred (500) pages remain, in which case the remaining balance shall be processed) and produce to the plaintiffs, on or before April 1, 2021, and thereafter on the first day of every month (or on the next business day if the first is not a business day or is a holiday) until production has been completed, the non-exempt portions of these records.
SO ORDERED this 7th day of December, 2020. REGGIE B. WALTON United States District Judge
2