UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY :

AND ETHICS IN WASHINGTON, :

:

Plaintiff, :

:

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

:

U.S. DEPARTMENT OF JUSTICE, : 

:

Defendant.

MEMORANDUM OPINION

Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”) brings this action

against Defendant U.S. Department of Justice (“DoJ”), challenging its denial of Plaintiff’s requests

under the Freedom of Information Act (“FOIA” or “the Act”), 5 U.S.C. § 552. Plaintiff’s FOIA

requests sought materials relating toDoJ investigations of U.S. Representative Don Young involving

allegations of bribery and other illegal conduct.

This matter is presently before the Court on Defendant’s Motion for Summary Judgment

(“Def.Mot.”) [Dkt. No. 10] and Plaintiff’s Cross-Motion for Partial SummaryJudgment (“Pl.Mot.”)

[Dkt. No. 12]. Upon consideration of the Motions, Oppositions, and Replies, the entire record herein,

and for the reasons set forth below, Defendant’s Motion for Summary Judgment is denied and

Plaintiff’s Cross-Motion for Partial Summary Judgment is granted.

I. PROCEDURAL BACKGROUND1

On January 24, 2011, Plaintiff submitted identical FOIA requests to DoJ component

agencies, the Federal Bureau of Investigation (“FBI”), the Executive Office for United States

The facts set forth herein are drawn from the parties’ statements of material facts submitted 1

pursuant to Local Rule 7(h), the briefs, and the evidence in the record.
Attorneys (“EOUSA”), and the Criminal Division of DoJ (“CRM”). Each of the three requests

sought “all records related to investigations conducted by DoJ and the Federal Bureau of

Investigation (“FBI”) of Rep. Don Young (R-AK) that are not covered by grand jury secrecy . . . ,

including but not limited to DoJ’s decision not to bring criminal charges against him.” Defendant’s

Statement of Material Facts Not in Dispute ¶¶ 1,8,16 (“Def. Stmt of Facts”)[Dkt. No. 10-2].

On January 25, 2011, the FBI issued its response to Plaintiff’s FOIA request. Id. ¶ 9. The

EOUSA responded on February 1, 2011, and the CRM responded after the filing of the present

litigation. Id. ¶¶ 2, 18; Def. Mot. 9. Without conducting a search for the requested documents, all

three entities categoricallydenied Plaintiff’s requests pursuant to FOIA Exemptions 6 and 7(C). Def.

Stmt. of Facts, ¶¶ 2, 9; Declaration of Kristin Ellis (“Ellis Decl.”) [Dkt. No. 10-3]. As stated in the

FBI’s denial:

You have requested records concerning a third party . . . . Records

pertaining to a third party generally cannot be released absent express

authorization and consent of the third party, proof that the subject of

your request is deceased, or a clear demonstration that the public

interest in disclosure outweighs the personal privacy interest and that

significant public benefit would result from the disclosure of the

requested records. Since you have not furnished a Certificate of

Identity form, proof of death, or public justification for release, the

release records concerning a third party would result in an

unwarranted invasion of personal privacy and would be in violation

of the Privacy Act, 5 U.S.C. § 552a. These records are also generally

exempt from disclosure pursuant to section (b)(6) and (b)(7)(C) of the

Freedom of Information Act, 5 U.S.C. § 552.

If requested, we will conduct a search for any public records

maintained in our files, such as court records and news clippings,

without the express authorization of the third party, proof of death, or

public justification for release provided the subject is of sufficient

notoriety.

Def. Stmt. of Facts ¶ 9.

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The FBI and EOUSA also notified Plaintiff of its right to appeal the decision to DoJ’s Office

of Information Policy (“OIP”). Id. ¶¶ 3, 10. Plaintiff appealed the FBI and EOUSA denials on

February 7, 2011, but filed the present lawsuit before receiving a decision from OIP. Id. ¶¶ 4, 6, 11, 2

14.

II. ANALYSIS

A. Statutory Framework

The courts have long recognized that FOIA’s “basic purpose reflect[s] a general philosophy

of full agency disclosure unless information is exempted under clearly delineated statutory

language.” Dep’t of Air Force v. Rose, (“Rose”) 425 U.S. 352, 360-61 (1976) (citation and internal

quotations omitted). See also Multi AgMedia LLC v. Dep’t of Agriculture (“Multi AgMedia”), 515

F.3d 1224, 1227 (D.C. Cir. 2008). In other words, “[a]t all times, courts must bear in mind that

FOIA mandates a ‘strong presumption in favor of disclosure.’” Nat’l Ass’n of Home Builders v.

Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S. Dep’t of State v. Ray, 502 U.S. 164, 173

(1991)). Because FOIA’s “basic policy that disclosure, not secrecy, is the dominant objective of the

Act,” Rose, 425 U.S. at 361, FOIA’s exemptions “must be narrowly construed.” Id.

The Act “requires agencies to comply with requests to make their records available to the

public, unless the requested records fit within one or more of nine categories of exempt material.” 

Oglesby v. U.S. Dep’t of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996). In narrowly construing

the applicability of the FOIA exemptions, it is essential to remember that the Act’s central purpose

is “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check

On June 7, 2011, OIP notified Plaintiff that it had closed its appeal of the FBI denial due to the 2

commencement of the present litigation. Def. Stmt. of Facts ¶ 14. The record does not indicate

whether OIP ruled on Plaintiff’s appeal of the EOUSA’s denial. 

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against corruption and hold the governors accountable to the governed.” NLRB v. Robbins Tire &

Rubber Co., 437 U.S. 214, 242 (1978). In order to further that purpose, federal agencies claiming

applicability of any of FOIA’s exemptions bear the burden of providing a “‘relatively detailed

justification’ for assertion of an exemption, and must demonstrate to a reviewing court that records

withheld are clearly exempt.” Birch v. U.S. Postal Service, 803 F.2d 1206, 1209 (D.C. Cir. 1986)

(quoting Vaughn v. Rosen (“Vaughn”), 484 F.2d 820, 827-28 (D.C. Cir. 1973)).

To satisfy that requirement, our Court of Appeals established, in Vaughn v. Rosen, a

procedural framework for evaluating exemption claims which directs exactly how agencies must

proceed when seeking to deny disclosure of requested documents. In Mead Data Central, Inc. v.

Department of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977), the Court spelled out the Vaughn

requirement that “when an agencyseeks to withhold information, it must provide a relativelydetailed

justification, specifically identifying the reasons why a particular exemption is relevant and

correlating those claims with the particular part of withheld documents to which they apply.” Since

Vaughn and Mead were decided, the usual practice has been for agencies to submit an affidavit

(referred to as the “Vaughn Index”) specifically identifying each document they seek to withhold

and/or the precise redaction of each document they wish to make, along with “a relatively detailed

justification” for their assertions. Thereafter, a plaintiff can respond to the justification offered by

the agency and, most importantly, the court can assess on a document-by-document basis, as

described in the Vaughn Index, whether the Government is justified in withholding the listed

material under the specific FOIA exemption claimed. As our Court of Appeals has said in Kimberlin

v. U.S. Department of Justice, 139 F.3d 944, 950 (D.C. Cir. 1998),

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The purpose of a Vaughn index is to permit adequate adversary

testing of the agency’s claimed right to an exemption, and those who

contest denials of FOIA requests--who are, necessarily, at a

disadvantage because they have not seen the withheld documents--

can generallyprevail onlyby showing that the agency’s Vaughn index

does not justify withholding information under the exemptions

invoked.

(quoting, Schiller v. NLRB, 964 F.2d 1205, 1209 (D.C. Cir. 1992)).

In short, the procedures established in Vaughn and Mead have created a system under which

the agency has a full opportunity to make its claim for withholding information, the requester has

a full opportunity to challenge those claims, and the court -- not the agency-- makes the final decision

as to the legality of the Government’s claims. It is fair to say that over the years, this procedure has

served all parties -- and above all the American public -- well.

It is true that under certain circumstances, often involving Exemptions 6 and 7(C), “rules

exempting certain categories of records from disclosure [have] sometimes permitted, even

encouraged,” such categorical rules as “a workable manner of meeting FOIA obligations.” Nation

Magazine, Wash. Bureau v. U.S. Customs Servs. (“Nation Magazine”), 71 F.3d 885, 893 (D.C. Cir.

1995). However, the Court of Appeals has made it clear that “[t]here are limits, though, to when

categorical rules may be employed.” Id. Such categorical denials are only appropriate “when the

range of circumstances included in the category ‘characteristically support[s] an inference’ that the

statutory requirements for exemption are satisfied . . . .” Id. (citation and internal quotations

omitted).

This case presents one issue: whether the Department of Justice and its component entities

acted lawfully in “categorically” denying Plaintiff’s FOIA requests.

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B. The Balancing of Privacy Interest Versus Public Interest

Plaintiff argues that Defendant was incorrect in categorically denying its FOIA requests and

should, instead, have followed the procedure outlined in Vaughn and Mead by conducting a search

for responsive documents and providing a Vaughn index for any withheld items. Defendant argues

that it was permitted to categorically refuse Plaintiff’s requests because Rep. Young has a privacy

interest in the requested records and Plaintiff has failed to articulate a public interest that overrides

his privacy interest. 

FOIA Exemption 6, upon which the Government relies, applies to “personnel ormedical files

and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal

privacy.” 5 U.S.C. § 552(b)(6). FOIA Exemption 7(C), upon which the Government also relies,

applies to “records or information compiled for law enforcement purposes” when disclosure “could

reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. §

552(b)(7)(C). 

Although the privacy language in Exemption 7(C) is broader than the privacy language in

Exemption 6, the courts employ a similar analysis to decide whether a FOIA request may be

categorically denied on either ground. U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the

Press (“Reporters Comm.”), 489 U.S. 749, 756-62 (1989); Judicial Watch v. U.S. Dep’t of

Homeland Sec’y, 598 F. Supp. 2d 93, 97 n. 1 (D.D.C. 2009) (“The privacy inquiries under

Exemptions 6 and 7(C) are ‘essentially the same’”) (quoting Judicial Watch, Inc. v. U.S. Dep’t of

Justice, 365 F.3d 1108, 1125 (D.C. Cir. 2004)). Under both exemptions, the court must first assess

whetherthe third-party has more than a de minimis privacy interest in the requested material. ACLU

v. U.S. Dep’t of Justice, 655 F.3d 1, 12 (D.C. Cir. 2011). If such an interest exists, the court must

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then determine whether the third-party’s privacy interest is outweighed by the public interest in

disclosure. Id. at 6.

As already noted, Plaintiff seeks records relating to DoJ’s investigation of Rep. Don Young

concerning allegations of bribery and other illegal conduct. The allegations and resulting

investigations conducted by DoJ and the FBI which Plaintiff referenced in its request, grew out of

newspaper articles in 2007 raising questions regarding the role played by Rep. Young in what

became known as the “Coconut Road Earmark.” See Pl.’s Exhs. A and B [Dkt. Nos. 11-2, 11-3].3

Those reports indicated that in February of 2005, Rep. Young, who was then serving as Chair

of the House of Representatives Transportation Committee, traveled to Florida to discuss

transportation projects including a $10 million expansion of Interstate 75 that would have connected

that freeway to Coconut Road. The news reports indicated that during that visit, Rep. Young

attended a fund raiser in his honor organized by a real estate developer who owned more than 4,000

acres of land along Coconut Road, thus standing to gain financially from the project. In the Fiscal

Year 2006 Transportation Bill, introduced and supported byRep. Young, $10 million was earmarked

for certain improvements to I-75 in Florida. 

After the House and Senate approved the Bill, but before the President signed it into law, the

original language was deleted and the phrase “Coconut Rd. interchanges I-75/Lee County” was

inserted. 

4

In its Cross-Motion for SummaryJudgment, Plaintiff has cited, and quoted from, numerous articles

3

on this subject.

According to one news report, “someone with access to the bill deleted the earmark’s original 4

language that would have given $10 million more for widening and improvements to Interstate 75

and attached the phrase ‘Coconut Rd. interchange I-75/Lee County . . . .” Julio Ochoa, Report

(continued...)

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In response to the controversy, in 2008 Congress directed DoJ to conduct an investigation

into the earmark allegations about the Coconut Road project. During the Senate debate on this

legislation, Sen. Harry Reid said:

. . . The facts are not yet all known, as I have just said, but if these

allegations -- or some of them -- are true, this is one more example of

the corruption that permeated the Congress in recent years. We have

two Members of Congress who have gone to prison. We have staff 

members who have gone to prison. Some are on probation and have

pled guilty. So it is fair to say there was a lot of corruption in recent

years.

154 CONG. REC. 3106-03, 53115 (Apr. 17, 2008) (remarks of Sen. Reid). 

When the House of Representatives considered the Coconut Road investigation provision,

Rep. Young said, “I am going to go through a chronological order of what has occurred about the

issue of Coconut Road,” and then gave a detailed explanation of his actions. 154 CONG. REC.

H-2867-03, H2282-H-2283 (Apr. 30, 2008) (remarks of Rep. Young). After saying that “This has

always been a good project,” he concluded with the following comments:

So why am I talking about this, other than to give the chronological

order of events that occurred? Well, it’s very easy. I have been the

subject of much innuendo concerning my intent and motivation of

this project. These accusations have little, if any, connection with

what actually occurred. . . . After all the accusations and rumors

about [the FY 2006 transportation] bill, I hope this sets the record

straight. . . .

Id.

(...continued) 4

Shows Someone Edited Federal Transportation Bill, NAPLES DAILY NEWS, Aug. 8, 2007, Pl.’s Exh.

B. The report goes on to explain that “[t]he language within the earmark was changed during a

process called ‘bill enrollment,’ when technical corrections aremade to legislation before being sent

to the president.” Id.

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The Coconut Road earmark investigation provision was enacted as section 502 of the Safe,

Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU)

Technical Corrections Act of 2008, P.L. 110-244 (June 6, 2008), and reads as follows:

SEC. 502. DEPARTMENT OF JUSTICE REVIEW

Consistent with applicable standards and procedures, the Department

of Justice shall review allegations of impropriety regarding item 462

in section 1934(c) of Public Law 109-59 to ascertain if a violation of

Federal criminal law has occurred.

On August 4, 2010, the congressional office of Rep. Young issued the following press

release:

A Statement From the Office of Congressman Young

Congressman Young’s legal team has been notified that after full

cooperation from the Congressman, the Public IntegritySection of the

Department of Justice has concluded their investigation and declined

prosecution of Congressman Young.

Pl. Exh. F [Dkt. No. 11-7].

1. Rep. Young Has a Cognizable, AlbeitDiminished, Privacy Interest in the

Requested Documents

The first step of the balancing test under both Exemptions 6 and 7(C) is to determine whether

there is a privacy interest in the material sought. In Reporters Comm., the Supreme Court explained

that “[p]rivacy is the claim of individuals . . . to determine for themselves when, how, and to what

extent information about them is communicated to others.” 489 U.S. at 764 n. 16 (citations and

quotations omitted). For a privacy interest to be “cognizable” under FOIA it must be “substantial.” 

However, “use of the word substantial in this [FOIA] context, means less than it might seem. A

substantial privacy interest is anything greater than a de minimis privacy interest.” Multi Ag Media,

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515 F.3d at 1229-30. See Consumers’ Checkbook Ctr. for Study of Servs. v. U.S. Dep’t of

Homeland Sec’y (“Consumers’ Checkbook Ctr.”), 554 F.3d 1046, 1050 (D.C. Cir. 2009). Thus, in

this Circuit, any privacy interest greater than de minimis constitutes a “substantial privacy interest”

which is “cognizable” under FOIA.

While it is true that Government officials may have a somewhat diminished privacy interest

“they do not surrender all rights of personal privacy when they accept a public appointment.” 

Quinon v. F.B.I., 86 F.3d 1222, 1230 (D.C. Cir. 1996) (citation and internal quotations omitted). 

Ordinarily, anything that would associate a third party with a criminal investigation would establish

that individual’s privacy. Reporters Comm., 489 U.S. at 772-73. Nor is there any doubt that

“individuals have a strong interest in not being associated unwarrantedly with alleged criminal

activity.” Stern v. FBI, 737 F.2d 84, 91-92 (D.C. Cir. 1984). This may be especially true for

politicians who rely on the electorate to return them to public office. For this reason, it cannot be

said that Rep. Young does not have even a de minimis or “cognizable” privacy interest under FOIA. 

However, those very important general principles of privacy have far less force in this case

because the information -- namely, the fact that DoJ conducted an investigation of activities

involving Rep. Young -- is already a matter of public record. Rep. Young has himself confirmed in

a press release issued by his Congressional office that there was an investigation into his activities,

and has recognized that he has “been the subject of much innuendo concerning [his] intent and

motivation of this project [referring to the Coconut Road Earmark].” 154 CONG.REC. H-2867-03,

H2882 (Apr. 30, 2008) (Remarks of Rep. Young). One can have no privacy interest in information

that is already in the public domain, especially when the person asserting his privacy is himself

responsible for placing that information into the public domain.

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In Kimberlin, the Court of Appeals addressed a factual situation quite similar to the present

case. An Assistant United States Attorney acknowledged that he had been the subject of an internal

ethics investigation and that he had been punished for unethical conduct. Kimberlin, 139 F.3d at

946-47. On appeal, the Circuit recognized that 

[The AUSA’s] statement to the press undoubtedly does diminish his

interest in privacy: the public already knows who he is, what he was

accused of, and that he received a relatively mild sanction.

Id. at 949.

In this case, the Congressman’s statement to the press, as well as other statements he made

on the floor of the House of Representatives, clearly “diminish his interest in privacy.” While the

Government cites Kimberlin in support of its position, neither the procedural posture nor the

substantive holding of Kimberlin support its position. At the District Court level, the Government

first refused “either to confirm or to deny that such an investigation had taken place,” id. at 947, but

ultimately did conduct a search, released a small amount of material, and withheld the remainder of

the material sought. In other words, Kimberlin did not involve a categorical denial of documents. 

Indeed, the Government agreed in that case that the balancing of interests “should be done on a caseby-case basis rather than categorically.” Id. at 949. 

 On appeal, the Court of Appeals held that “[i]n order to withhold an entire file pursuant to

Exemption 7(C), the Government must show that disclosure of any part of the file” would violate

the subject’s privacy, and that it “must make that showing in its Vaughn Index and in such affidavits

as it may submit therewith.” Id. at 950. The Court squarely rejected DoJ’s contention that it should

be allowed a categorical withholding of the investigative file and refused to accept the Department’s

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sweeping claim without “[providing] more specification of the types of material in the file.” Id. See

Judicial Watch v. U.S. Dep’t of Homeland Sec’y, 598 F. Supp. 2d at 96 (holding that the “agency

must, for each record, conduct a particularized assessment of the public and private interest at

stake.”) (emphasis added). In sum, given the rather narrow meaning of “substantial cognizable 5

interest” in this Circuit, and given the fact that Rep. Young has more than a merely de minimis

interest in his privacy, the Court concludes that he does have a substantial -- although much

diminished -- privacy interest in withholding the documents Plaintiff seeks. 

2. There Is a Substantial Public Interest in Disclosure of the Requested

Records

The second step of the balancing test under Exemptions 6 and 7(C) is to determine whether

there is a substantial public interest in releasing the requested documents. It is difficult to understand 

how there could not be a substantial public interest in disclosure of documents regarding the manner

in which DoJ handled high profile allegations of public corruption about an elected official. Clearly,

the American public has a right to know about the mannerin which its representatives are conducting

themselves and whether the government agency responsible for investigating and, if warranted,

prosecuting those representatives for alleged illegal conduct is doing its job. “The public interest

that must be weighed in this balance is the extent to which disclosure advances ‘the basic purpose

of the Freedom of Information Act to open agency action to the light of public scrutiny.’” ACLU,

655 F.3d at 6 (quoting Reporters Comm., 489 U.S. at 722).

It is true that once the Agency did submit its Vaughn Index, the District Court accepted its 5

arguments and ruled that DoJ properly withheld the information sought under Exemption 7(C). 

Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec’y, 736 F. Supp. 2d 202, 212 (D.D.C. 2010). 

That is precisely the procedure, albeit not the ruling on the merits, that Plaintiff seeks in this case.

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In particular, in these days of political turmoil, constant accusations and name calling, and

concern about our economic and social future, there is, if anything, a heightened public interest in 6

learning what the Government is “up to.” Id. at 12. As the Supreme Court pointed out early in

FOIA’s history, and constantly reiterates, “[o]fficial information that sheds light on the agency’s

performance of its statutory duties falls squarely within [FOIA’s] statutory purpose.” Reporters

Comm., 489 U.S. at 773. In this case, disclosure of information concerning DoJ’s investigation of

Rep. Young would unquestionably “shed light on the agency’s performance of its statutory duties.” 

Id. 

In addition to the widespread public interest in this country at this time in holding its

Government accountable, we have the added, and decidedly uncommon fact in this case, that

Congress passed a specific piece of legislation, P.L. 110-244, § 502 (June 6, 2008), directing DoJ

to conduct an investigation of all “allegations of impropriety regarding item 462 in Section 1934(c)

of Public Law 109-59 to ascertain if a violation of Federal criminal law has occurred.” Item 462

in § 1934(c) of P.L. 109-59, which was enacted as Section 502 of the Safe, Accountable, Flexible,

Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Technical Corrections

Act of 2008, P.L. 110-244 (June 6, 2008), authorized an appropriation of $10 million for a project

described as “Coconut Rd. Interchange and I-75/Lee County.” Moreover, in a highly unusual, and

unexplained, action, the original language in the Appropriations Bill was mysteriously changed after

the House and Senate approved the Bill but before the President signed it, to more specifically

indicate that Item 462 was for the benefit of the Coconut Road Interchange. 

The Court is well aware that this is not the first, or second, time in American history that our 6

political discourse has been polarized, that intemperate language has been used, and that allegations

of serious misconduct by public officials have abounded. 

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Given the fact that Rep. Young was at that time Chair of the House of Representatives

Transportation Committee, and given the detailed remarks he made on the floor of the House of

Representatives about this matter, there is a substantial public interest in examining the adequacy

of DoJ’s enforcement of other types of law governing the activities of federal officials, in addition

to the explicit direction given by Congress to DoJ to investigate the Coconut Road matter.

7

The Government argues that Plaintiff has failed to establish any cognizable public interest

because “it is only the conduct of the agency holding the requested document that can implicate

cognizable public interest under FOIA.” Defendant’s Opposition to Plaintiff’s Cross-Motion for

Partial Summary Judgment and Reply to Plaintiff’s Opposition to Defendant’s Motion for Summary

Judgment at 13-14 (“Def.’s Opp.”) [Dkt. No. 13]. It then goes on to state that “there is significant

public interest only if there is compelling evidence that the agency is engaged in illegal activity.” 

Id. at 14 (citing SafeCard Servs. v. S.E.C., 926 F. 2d 1197, 1205-06 (D.C. Cir. 1991) (emphasis not

in original)). 

Plaintiff has made it very clear in its papers that it is not arguing that DoJis engaged in either

illegal or negligent action. Therefore, it is not correct that Plaintiff must provide compelling

evidence of any such conduct on the part of DoJ. 

It is only when a requester is making such allegations of illegal or otherwise improper

conduct that “compelling” evidence must be offered demonstrating such behavior. ACLU, 655 F.3d

at 14. In ACLU, the Court of Appeals explicitly distinguished situations in which that requirement

 For example, see Common Cause v. Nat’l Archives and Records Serv., 628 F.2d 179, 183 n. 10 7

(D.C. Cir. 1980) (regarding the Federal Corrupt Practices Act); Wash. Post Co. v. U.S. Dep’t of

Health and Human Servs., 690 F.2d 252, 265 (D.C. Cir. 1982) (regarding conflict-of-interest

information), and Dow Jones & Co. v. U.S. Dep’t of Justice, 724 F. Supp. 985, 990-91 (D.D.C.

1989) (regarding disclosure statutes).

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is applicable from the situation presented in this case where a FOIA requester is “not (or at least not

only) seeking to show that the government’s . . . policy is legally improper . . . .” Id. at 14. The

Court ruled that evidence of such misconduct is not required in that instance. “‘[M]atters of

substantive law enforcement policy . . . are properly the subject of public concern,’ whether or not

the policy in question is lawful.” Id. (quoting Reporters Comm., 489 U.S. at 766, n. 18). The Court

explained that the fact that the ACLU did not suggest that the DoJ activity at issue was legally

improper, “distinguishes this case from cases like our recent decision in Blackwell v. FBI, 646 F.3d

37 (D.C. Cir. 2011).” Id. at 14 n. 22. See Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec’y,

8

598 F. Supp. 2d at 97. 

Finally, in Multi Ag Media, the Court of Appeals reiterated, referring to Reporters Comm.

and U.S. Department of Defense v. FLRA (“FLRA), 510 U.S. 487, 495 (1994), that the relevant

public interest under FOIA is “the extent to which disclosure [of requested files] would serve the

‘core purpose of the FOIA’ which is ‘contribut[ing] significantly to public understanding of the

operations and activities of the government.’” 515 F.3d at 1230-31 (quoting FLRA, 510 U.S. at

495). Thus, it is clear that there is no requirement that a FOIA requester must always allege that the

Government is acting illegally in order to establish the existence of a substantial public interest.

The Government also argues that “[w]ere the law as Plaintiff claims, Plaintiff could seek

records about any decision to prosecute or not to prosecute.” Def.’s Opp. at 14. This is known as

the time-worn “opening of the flood gates” argument. As is usually the case with such arguments,

In Blackwell, a convicted felon sought “information from the FBI that he believes would show 8

misconduct by federal investigators and prosecutors handling his case.” 646 F.3d at 39.

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it vastly overstates the perceived danger and ignores the fact that once a Vaughn Index is filed, the 9

Court will make a specific individualized decision for each document as to whether it should be

redacted or totally withheld pursuant to Exemption 6 and Exemption 7(C). 

3. Balancing of Privacy and Public Interests

The Court concludes that the balancing of Rep. Young’s privacy interest against the public

interest in releasing the requested documents tips strongly in favor of the public interest. As already

explained, Rep. Young’s private interest is minimal, albeit not de minimis, given that DoJ’s

investigation of him is not a secret and that he himself publicly announced the results of that

investigation and discussed his involvement in the proceedings. Above all, because release of this

information would “contribute significantly to public understanding of the operations or activities

of the government,” the public interest in releasing this information is very strong. Consumer’s Ctr.,

554 F.3d at 1051 (citation and internal quotations omitted). The public needs to know how DoJ

carried out its statutory duties to investigate allegations of bribery and corruption of members of

Congress. That is the purpose of FOIA.

For all the forgoing reasons, the Court concludes that the Government’s Motion for Summary

Judgment will be denied, the Plaintiff’s Cross-Motion for Partial Summary Judgment will be

granted, and the Government will be ordered to submit a Vaughn Index within 60 days of the date

of this Opinion.

January 10, 2012 /s/ 

Gladys Kessler

United States District Judge

During briefing, and consideration of the Vaughn Index, the Court can, if deemed appropriate, seal 9

the proceedings until a final decision is reached.

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