UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA CITIZENS F OR RESPONSIBILIT Y : AND ETHICS IN WASHI NG TON, : : P laintif f, : : v. : Civil Action No. 11-754(G K) : U.S. DEPA RTMENT OF JU STICE , : : Defendan t. MEMORAN DUM OP INION Plaintiff Citi zens for Responsibili ty and Ethics in Washington (“CREW”) bring s this action
ag ainst Def

endant U.S. Depa

rtment of J ustice (“D oJ ”), challeng ing its denial of Plaintiff’s reque sts under the Fr eedom of I nformation Act (“F OI A” or “the Act”) , 5 U.S.C

. § 5 5 2

. Plaintiff’s FOI A
reque sts soug ht materia ls rela ti n g to D o J in

v e s ti g ations of U.S. Represe ntative Don Young involving alleg ations of briber

y and other illega l conduct. This matter is prese ntly befor e the Court on Def endant’ s Motion for Summary J udg ment ( “ D e f

. Mot.”) [Dkt. No. 10] and Plaintiff’s Cross-Motion for Partial Summary J udg ment (“Pl. M o t. ” ) [Dkt. No. 12]. Upon considera tion of the Motions, Oppositions, and Replies, the entire r e c o rd here in, and for the rea sons set forth below, Def endant’ s Motion for Summary J udg ment is denied and Plaintiff’s Cross-Motion for Partial Summary J udg ment is granted

. I. P ROCEDURAL BACK GR OUND 1 On J anuar

y 24, 2011, Plaintiff submi t t ed identical FOIA reque sts to DoJ component
ag encie s, the Fe dera l Bur eau of I nvestig ation (“F BI ”), the Ex ecutive Off i ce fo r United States

The fac ts set forth h er ei n ar e draw n from the parties’ statements of materia l fac ts submitt ed 1 pursuant to L ocal Rule 7(h) , the brief s, and the e vidence in the rec ord.Attorney s (“EO USA”), and the Criminal Division of Do J (“ C R M ”). Eac h of the three reque sts

soug ht “all rec ords rela ted to inves tiga tions conducte d by DoJ and the Fe dera l Bur eau of
I nvestig ation (“F BI ”) of Rep. Don Young (R-AK) that are not cover ed by g rand jury secr ecy . . . , including but not limit ed to DoJ ’s decision not to bring criminal char g es ag ainst him.” Def endant’ s Statement of Mater ial Fa cts Not in Dispute ¶¶ 1,8,16 ( “De f. Stmt of Fac ts”)[Dkt. No. 10-2]. On J anuar

y 25, 201 1 , t h e FB I issued its response to Plaintiff’s FOIA request. I d. ¶ 9. The EOUSA respon d ed o n Fe bruar y 1, 2011, and the CRM responde d afte r the filing of the prese nt litigation. I d. ¶¶ 2, 18; De f. Mot . 9. Wit hout conducting a sea rch f or the re quested doc uments, all three entities cate g orica lly denied Plaintiff’s reque sts pursuant to FOI A Ex emptions 6 and 7(C). Def

. Stmt

. of Fa cts, ¶¶ 2, 9; Dec lara tion of Kristin Ellis (“Ellis Dec l.”) [Dkt. No. 10-3]. As stated in the
FB I ’s denial: You h ave reque sted rec ords conce rning a third party

. . . . Records

perta ining to a third party g ener ally cannot be rele ased absent express authorization and consent of the third party , proof that the subject of y our reque st is dece ased, o r a cl ear demonstration that the public interest in disclosure outweig hs the persona l privac y interest and that s i g nificant public benef

it would result from the disclosure of th e reque sted rec ord s . Since y ou have not furnished a Certifica te of I dentity form, proof of death, or public justification for releas e, the rele ase re co rds conce rning a third party would result in an unwar rante d invasion of per sonal privac y and would be in violation of the Privacy Act, 5 U.S.C. § 552a. These rec ords are also g ener ally exempt from disclosure pursuant to section (b)( 6) and (b)( 7)(C) of the Fr eedom of

I nformation Ac t, 5 U.S.C. § 552. I f reque sted, we will conduct a sear ch for any public records maintained in our files, such as court rec ords and news cl i p pings, without the express authorization of the third party , proof of death, or public justification for rele ase provided the subject is o f s ufficie nt notoriety

. Def . Stmt . of F acts ¶ 9.

-2-The FB I and EOUSA also notified Plaintiff of its rig ht to appea l the decision to DoJ ’s Offic e

of I nformation Policy (“O I P”). I d. ¶¶ 3, 10. Plaintiff appeal ed t h e FBI and EOUSA denials on Fe bruar y 7, 2011, but filed the prese nt lawsuit befor e rec eiving a decision from OI P. I d. ¶¶ 4, 6, 11, 2 14. II. ANALYSIS A. Statutory F ram ework The courts have long rec og nized that FOIA’s “basic purpose ref lect[s] a g ener al philosophy of full ag ency disclosure unless in fo rm ation is exempted under clea rly delineate d statutory lang uag e.” Dep’ t of Air For ce v. Rose, (“Rose” ) 425 U.S. 352, 360-61 (1976) (citation and internal quotations omitted). See also Multi Ag Media L L C v. Dep’ t of Ag riculture (“Multi Ag Media” ), 515 F.3d 1224, 1227 (D.C. Cir. 2008). I n other words, “[a]t all times , co u rt s m u s t bear in mind that FOI A mandates a ‘strong presumption i n fa v or of disclosure.’” Nat’l Ass’n of Home Builder s v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (q u o t i ng U.S. Dep’ t of State v. Ray , 502 U.S. 164, 173 (1991))

. Be cause FOIA’s “basic policy that disclosure, not secr ecy , is the dominant objective of the Act,” Rose, 425 U .S. at 361, FOI A’s exemptions “must be narrow ly construed.” I d. The Act “re quires ag encie s to co m p ly with reque sts to make their rec ords available to the public, unless the reque sted rec ords fit within one or more of nine cate g ories of exempt materia l.” Og lesby v. U.S. Dep’ t of t he Army , 79 F.3d 1172, 1176 (D.C. Cir. 1996). I n narr owly construing the applicability of the FOIA exemptions , it is essential to reme mber that the Act’s centr al purpose is “to ensure an informed citizenry , vital to the functioning of a democr atic society , neede d to chec k

On J une 7, 2011, OI P notified Plaintiff that it had closed its appea l of the FB I denial due to the 2 commence ment of the prese nt litigation

. De f. Stmt

. of Fa cts ¶ 14. The rec ord does not indicate whether OI P ruled on Plaintiff’s appe al of the EO USA’s denial. -3-ag ainst corr uption and hold the g overnor s acc ountable to the g overne d.” NL RB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). I n order to f urther that purpose, f

eder al ag encie s claiming applicability of any of FOIA’s exemptions bear the burden of providing a “‘r el at i v el y detailed justification’ for asser

tion of an exemption, and must demonstrate to a revie wing court that rec ords withheld are clea

rly exempt.” Birc h v. U.S. Post al Service , 803 F.2d 1206, 1209 ( D.C. Cir. 1986) (quoting Vaug hn v. Rosen (“V aug hn”), 484 F .2d 820, 827-28 (D.C. Cir. 1973))

. To satisfy that requirement, our Court of Appea ls established, in Vaug hn v. Rosen, a proc ed u ra l framework for evalua ting exemption claims which direc ts exactly how ag encie s must
proce ed when seeking to deny disclosure of reque sted documents. I n Mead Data Cen t ra l , I nc. v. Depa rtment of the Air For ce, 566 F.2d 242, 251 (D.C. Cir. 1977), the Court spelled out the Vaug hn require ment that “w

h e n a n a g e n c y seeks to withhold information, it must provide a rela tively detailed justification, specific ally identify i n g t h e rea sons why a particula r exemption is rele vant and

corr elating those claims with the particula r part of withheld documents to which they apply .” Since Va u g hn and Mead wer e decide d, the usual prac tice has been for ag encie s to submit an af fi d av i t (re fer red to as the “Va

ug hn I ndex”) specific ally identify ing eac h document they seek to wi t h h o l d and/or the prec ise reda ction of eac h document they wish to make, along with “ a rela tively detailed justification” for the ir asser tions. There afte r, a plaintiff can respond to the justification of fer ed by the ag ency and, most importantly , the court can assess on a document-by -docume nt basis, as descr ibed in the Vaug hn I n d ex , whether the Gover nment is justified in withholding the listed materia l under the specific FOIA exemption claimed. As our Court of Appea ls has said in Kimberlin v. U.S. Depar

tment of J ustice, 139 F .3d 944, 950 (D.C. Cir. 1998),

-4-The purpose of a Vaughn index is to permit adequate adver sary testing of the ag ency ’s claimed rig ht to an exemption, and those who contest denials of FOIA reque st s--who are , nece ssarily , at a disadvantag e beca

use they have not seen the withheld documents-- can g ener ally preva il only by showing that the ag ency ’s Vaughn index does not justify withholding information under t h e exemptions invoked. (quoting , Schiller v. NL RB , 964 F.2d 1205, 1209 ( D.C. Cir. 1992)).
I n short, the proce dures established in Vaug hn and Mead have cre ated a sy stem under which the age ncy has a full opportunity to make its claim for withholdi n g information, t he requester has

a full opportunity to challeng e those claims, and the court -- not the ag ency -- makes the final decision

as to the leg ality of the Gover nment’s claims. I t is fair to say that over the y ear s, this proce dure has

serve d all parties - - and a

bove all the Ame rica

n public -- we ll.
I t is true that under cer

tain circ umstances, often invo l v i n g E x empt ions 6 and 7(C), “rule s exempting cer

tain ca t ego ri es of rec ords from disclosure [have] sometimes permitted, even

encour ag ed,” such cate g orica l rules as “a worka ble manner of meeting FOIA obliga tions.” Nation Mag azine, Wash. Bur eau v. U.S. Customs Servs. (“N ation Mag azine”), 71 F.3d 885, 893 (D.C. Cir. 1995). Howeve r, the Court of Appea ls has made it clea r that “[t] here are limit s, though, to when
cate g orica l rules may be employ ed.” I d. Such cate g orica l denials are only appropr iate “when the
rang e of circ umstances included in the cate g ory ‘cha rac teristically support[s] an infere nce’ that the statutory requir em ents for exemption are satisfied

. . . .” I d. (citation and internal quotations omitted). This case prese nts one issue: whether the Depa rtment of J ustice and its component entities
acte d lawfully

in “ca teg orica lly ” deny

ing Plaintiff’ s FOI A re quests.

-5-B. The Balan cing of P rivacy Inter est Ve rsus P ubl ic Intere st Plaintiff arg ues that Def

endant was incorre ct in cate g orica lly denying its FOIA reque sts and should, instead, have followed the proce dure outlined in Vaug hn and Mead by conducting a sear ch for responsive documents and providing a Vaug hn index for any withheld items. Def endant arg ues that it was permitted to ca teg orica lly ref use Plaintiff’s re quests beca use Rep. Young has a privac y interest in the reque sted rec ords and Plaintiff has failed to articula te a public interest that overr ides his privacy

interest. FOI A Ex emption 6, upon which the Gover nment relies, applies to “per s o nn e l o r me dical files and simil ar files the disclosure of which would constitute a clea rly unwar rante d invasion of persona l privac y .” 5 U.S

. C

. § 552(b)( 6). FOI A Ex emption 7(C), upon which the Gover nment also relies, applies to “re cords or information compiled for law enfor ceme nt purposes” when disclosure “could

rea sonably be expected to constitute an u n war rante d invasion of persona l privac y .” 5 U.S.C. § 552(b)( 7)(C). Although the p ri v ac y l anguag e in Ex emption 7(C) i s broade r t han the privac y lang uag e in
Ex emption 6, the courts employ a simil ar analy sis to decide wh et h er a FOI A reque st may be
cate g orica lly denied on either g round. U.S. Dep’ t of J ustice v. Reporter s Comm. for Fr eedom of the Press (“Repor

ters Comm.”) , 4 8 9 U. S

. 749, 756-62 (1989); J udicial Watch v. U.S. Dep’ t of Ho m el and Sec’y , 598 F. Supp. 2d 93, 97 n. 1 (D.D.C. 2009) (“The privac y inquiries under
Ex emptions 6 and 7(C) a re ‘ essentially

the same’ ”) (quoting J udicial W atch, I nc. v. U.S. Dep’ t of J ustice, 365 F.3d 1108, 1125 (D.C. Cir. 2004)). Under both exemptions , the court must first assess whether the third-par

ty has more than a de minimis privac y interest in the reque sted materia l. ACL U v. U.S. Dep’t of Justice, 655 F.3d 1, 12 ( D.C. Cir. 2011)

. I f such an interest exis ts, the court must

-6-then deter mine whether the third-pa rt y ’s p ri vacy interest is outweig hed by the public interest in disclosure. I d. at 6. As alre ady noted, Plaintiff seeks rec ords rela ting to DoJ ’s investigation of Rep. Don Young

co n cer ning alleg ations of bribery and other illega l conduct. The alleg ations and resulting investiga tions conducted by DoJ and the FB Iwhich Plaintiff re fer ence d in its request, g rewout of
newspa per article s in 2007 raising questions reg arding the role play ed by Rep. Young i n wh at beca me known as the “Coconut Road Earma rk.” See Pl.’s Ex hs. A and B [Dkt. Nos. 11-2, 11-3]. 3 Those repor

ts indicated that in Fe bruar y of 2005, Rep. Young , who was then serving as Chair of the House of R ep re s entatives Transpor tation Commi ttee, trave led to Florida to discuss transporta tion projec ts including a $10 milli on expansion of I nterstate 75 that would have connec ted that fre ewa

y to Coconut Road. The news repor ts indicated that duri n g t h at visit, Rep. Young attended a fund raiser in his honor org anized by a rea l estate develope r who owned more than 4,000

acr es of land along Coconut Road, thus standing to g ain financ ially from the projec t. I n the Fisca l Yea r 2006 Transpor

tation Bill, introduced a

n d s u p p o r te d by Rep. Young , $10 milli on was ear marke d for c erta in improvements to I -75 in Florida

. After the House and Senate approve d the Bill, but befor e the President signe d it into law, the orig inal lang uag e was deleted and the phrase “Coconut Rd. interchan ges I -7 5/L ee County ” was inserted. 4

I n its Cross-Motion for Summary J udg ment, Plaintiff has cited, and quoted from, numerous article s 3 on this subject. Acc ording to one news repor t, “someone with acc ess t o t h e b i l l deleted the ear mark’s orig inal 4 lang uag e that would have g iven $10 milli on more for widening and improvements to I nterstate 75 and attache d the phrase ‘Coconut Rd. i n t er ch ang e I -75/L ee County

. . . .” J ulio Ochoa , Report (continued...) -7-I n response to the controversy , in 2008 Congr ess d i rec ted DoJ to conduct an investiga tion

into the ear

mark alleg ation s ab o u t t h e Coconut Road projec t. During the Senate debate on this leg islation, S en. Ha

rry Reid said:

. . . The fac ts are not y et all known, as I have just said, b u t i f t h es e alleg ations -- or some of them -- are true, this is one more example of the corr uption that perme ated the Congr ess in rec ent y ear s. We have two Members of Congr ess who have g one to prison. We ha ve staff members who have g one to prison. Some are on probation and have pled g uilty

. So it is f

air to sa y there was a lot of corr

uption in rec ent y ear s. 154 C O N G
. R E C . 3106-03, 53115 (Apr . 17, 2008) (r emar ks of Sen. Reid). When the House of Represe ntatives considere d the Coconut Road investig ation provision, Rep. Young said, “I am going to g o throug h a chronolog ical order of what has occur red about th e issue of Coconut Road,” and then g ave a detailed explanation of his ac t i o n s . 154 C O N G
. R E C
. H-2867-03, H2282-H- 2283 (Apr. 30, 2008) (re marks of Rep. Young ). After say ing that “This has alway s been a

g ood projec t,” he c oncluded with the f ollowing c omments: So why am I talking a bout this, other than to g ive t he chronolog ical order of events that occur red? Well, it ’s ver

y easy . Ihave been the subject of much innuendo conce rni n g m y intent and motivation of this p ro ject. These acc usations have littl e, if any , connec tion with what actu al l y occur

red.

. . . After all the acc usations and rumors about [t he FY 2006 transporta tion] bill, I ho p e t h i s s ets the rec ord straig ht. . . .
I d.

(...continued) 4 Shows Someone Edited Fe dera l Transpor tation Bill, N A P L E S D A I L Y N E W S , Aug

. 8, 2007, Pl.’s Ex h. B. The report go es o n t o ex plain that “[t] he lang uag e within the ear mark was chang ed during a proce ss called ‘bill enrollment,’ when technica l corr ections are made to leg islation befor e being sent to the president.” I d. -8-The Coconut Road ear mark investigation provision was enac ted as section 502 of the Safe, Acc ountable, F lexi ble, Eff icient Tra nsportation Equity

Act: A L eg acy

for Use rs (SAF ETEA-L

U) Tec hnical Corre ctions Act of 2008, P.L . 110-244 (June 6, 2008), and r eads a s follows:

SEC. 502. DEPARTMENT OF JUS TI CE REVI EW Consist ent with applicable standards and proce dures, the Depa rtment of J ustice shall revie w alleg ations of impropriety reg arding item 462 in section 1934(c) of Public L aw 109-59 to asce rtain if a violation of Fe dera l criminal law ha s occur red. On Aug ust 4, 2010, the cong ressional office of Rep. Young issued the following press rele ase: A Statement Fr om the Offic e of Cong ressman Y oung

Congr essman Young ’s leg al team has been notified that afte r full cooper ation from the Congr essman, the Public I n te g r it y Se ction of the Depa rtment of J ustice has conclude d their investigation and declined prosec ution of Congr essman Young

. Pl. Ex h. F [Dkt. No. 11-7].

1. Rep. Young Has a Cognizable, Albeit Dim inis hed, P rivacy Intere st in the Requested Doc um ents The first step of the balanc ing test under both Ex emptions 6 and 7(C) is to deter mine whether there is a privac y interest in the materia l soug ht. I n Reporter s Comm., the Supreme Court explained that “[p] rivac y

is the claim of individuals .

. . to de termine for themselves when, how, and to what
extent inf o rm at i o n about them is communicated to others.” 489 U.S. at 764 n. 16 (citations and quotations omitted). For a privac y interest to be “cog nizable” under FOI A it must be “substantial.” Howeve r, “u s e o f the word substantial in this [FOI A] context, means less than it might seem. A substantial privac y interest is any thing g reater than a de minimis privac y interest.” Multi Ag Media,

-9-515 F.3d at 1229-30. See Consumers’ Checkbook Ctr. for Study o f S er v s . 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 privac y interest g reater than de minimis constitutes a “substantial privac y interest” which is “c og nizable” under FOI A. Whil e it is true that Gover nment officia ls may have a somewhat diminis hed privac y interest “they do not surre nder all rig h t s o f p er s o nal privac y when they acc ept a public appointment.” Quinon v. F.B .I ., 86 F.3d 1222, 1230 (D.C. C ir. 1996) (citation an d i n t erna l quotations omitted). Ordinar ily , any

thing that would associate a third party with a criminal investigation would establish that individual’s privac y . Reporter s Comm., 489 U.S. at 772-73. Nor is there any doubt that “i n d i v i duals have a strong interest in not being associate d unwar rante dly with alleg ed criminal activity .” Stern v. FB I , 737 F.2d 84, 91-92 (D

. C

. C i r. 1984). This may be espec ially true for politicians who rely on the electorate to return them to public office

. For this rea son, it cannot be said that Rep. Young does not have even a de minimis or “cognizable” privac y interest under FOI A. Howeve r, those very important g ener al principles of privac y have far less forc e in this case beca use the information -- namely , the fact that DoJ conducte d an investigation of activities involving Rep. Young -- is alre ady a matter of public rec ord. Rep. Young has himself confirme d in

a press rele ase issued by his Congr essional office that there was an investigation into his activities, and has rec og nized that he has “bee n the subject of much innuendo conce rning [hi s] intent and motivation of this projec t [refer ring to the Coconut Road Earma rk].” 154 C O N G
. R E C
. H-2867-03, H2882 (Apr. 30, 2008) (Remar ks of Rep. Young ). One can have no privac y interest in information
t h at is alre ady in the public domain, espec ially when the person asser ting his privac y is himself responsible for

placing that information into the public domain.

-10-I n Kimberlin, the Court of Appea ls addre ssed a fac tual situation quite simil ar to the prese nt

case . An Assistant United States Attorney acknow ledg ed that he had been the subject of an internal ethics investigation an d that he had been punished for unethical conduct. Kimberlin, 139 F.3d at 946-47. On a

ppeal, the Circ uit recog nized that [The AUSA’s] statement to the press undoubtedly does diminis h his interest in privac y : the public alre ady knows who he is, what he was acc used of, a

nd that he re ceive d a re latively mild sanction.
I d. at 949.

I n this c ase, the Congr essman’s statement to the press, as well as other statements he made on the floor of

the House of

Represe ntatives, clea

rly “diminish his i ntere st in privacy .” While the Gove rn m en t cites Kimberlin in support of its position, neither the proce dural posture nor the substantive holding of Kimberlin support its position. At the District Court level, the Gover nment first ref used “either to confirm or to deny that such an investigation had taken place ,” id. at 947, but ultimately did conduct a sear ch, rele ased a small amount of materia l, and withheld the rema inder of the materia l soug ht. I n other words, Kimberlin did not involve a cate g orica l de nial of documents.
I ndeed, the Gover

nment ag ree d in that case that the balanc ing of interests “should be done on a case by -ca se basis ra ther than c ateg orica lly .” I d. at 949. On appe al, the Court of Appeals held that “[i]n order to withhold an entire f ile pursuant to
Ex emption 7(C), t he Government m ust show that disclosure of a ny part of the fil e” would violate the subject’s privac y , and that it “must make that showing in its Vaug hn I ndex and in such aff idavits

as it may submit there with.” I d. at 950. The Court square ly reje cted DoJ ’s contention that it should be allowed a cate g orica l withholding of the investigative file and ref used to acc ept the Depa

rtment’s

-11-swee ping claim without “[providing] more specific ation of the ty pes of materia l in the file.” I d. See J udicial W atch v. U.S. Dep’ t of Homeland Sec’y , 598 F. Supp. 2d at 96 (holding that the “a g ency must, for eac h rec ord, conduct a particu l ariz ed assessment of the public and private interest at stake.” ) (e m p h as i s added)

. I n sum, g iven the rathe r narr ow meaning of “substantial cog nizable 5 interest” in this Circuit, and g iven the fac t that Rep

. Yo u n g h as more than a mere ly de minimis interest in his privac y , the Court conclude s that he does have a substantial -- althoug h much diminis hed -- privac y

interest in withholding the doc uments Plainti ff se eks. 2. There Is a Sub stantial P ubl ic Intere st in Disclosur e o f th e Requested Rec ords The second step of the balanc ing test under Ex emptions 6 and 7(C) is to deter mine whether there is a substantial public interest in rele asing the reque sted documents. I t is difficult to understand how there could not be a substantial public interest in disclosure of documents reg arding the manner in which DoJ handled high profile alleg ations of public corr uption about an elec ted officia l. Clearly , the Americ an public has a rig ht to know about the manner in which its repr esenta tives are conducting themselves and whe ther the g overnme nt ag ency responsible for investiga ting and, if war

rante d,
prosec uting those repr esenta tives for alleg ed il leg al conduct is doing i t s j o b

. “The public interest that must be weig hed in this balance is the extent to which disclosure advanc es ‘the ba sic purpose of the F ree dom of I nformation Act to ope n ag ency action to the light of public scrutiny .’” A CL U, 655 F.3d a t 6 (quoting Repor ters Comm., 489 U.S. at 722).

I t is true that o n ce the Ag ency did submit its Vaug hn I ndex, the District Court acc epted its 5 arg uments and ruled that DoJ proper ly withheld the information soug ht under Ex emption 7(C). J udicial Watch, I nc. v. U.S. Dep’ t of Homeland Sec’y , 736 F. Supp. 2d 202, 212 (D.D.C. 2010). That is prec isely

the proc edure , albeit not the ruling on the merits, that Plaintiff seeks in this case

. -12-I n particula r, in these da

y s of political turmoil, constant acc usations and name c alling, a nd

conce rn about our economic and social future, there is, if any thing, a heig htened public interest in 6 lear ning what the Gover

nment is “up to.” I d. at 12. As t h e S u p re me Court pointed out ear ly in FOI A’s history , and cons t an t l y reiter ates, “[o] fficia l information that sheds light on the ag ency ’s perf orman ce o f its statutory duties falls square ly within [FOI A’s] statutory purpose.” Reporter s Comm., 489 U.S. at 773. I n this case , disclosure of information conce rning DoJ ’s investiga tion of Rep. Young would unquestionably “shed light on the ag ency ’s perf ormanc e of its statutory duties.”
I d.
I n addition to the widespre ad public interest in this country at thi s t i m e i n holding its Gover nment acc ountable, we have the ad d ed , and decide dly uncommon fac t in this case , that Congr ess passed a specific piece of leg islation, P .L . 110-244, § 502 (June 6, 2008), di rec ting DoJ
to conduct an investigation of all “alleg ations of impropriety reg arding item 462 in Section 1934(c) of P ublic L aw 109-59 t o asce rtain i f a violation of Feder al criminal law has occur red.” I tem 462 in § 1934(c) of P.L

. 109-59, which was enac ted as Section 502 of the Safe, Acc ountable, Flexible, Effic ient Transpor

tation E quity

Act: A L eg acy

for Use rs (SAF ETEA-L

U), Te chnica l Correc tions Act of 2008, P.L

. 110-244 (June 6, 2008), authorized an appropr iation of $10 milli on for a projec t descr ibed as “Coconut Rd. I nterc hang e and I -75/L ee County .” Moreove r, in a highly unusual, and unexplained, action, the orig inal lang uag e in the Appropria tions Bill was my steriously chang ed afte r the House and Senate approve d the Bill but befor e the President signe d it, to more specific ally indicate that I tem 462 was for the bene fit of the Coconut Road I nterc hang e.

The Court is well awa

re that this is not the first, or second, time in Americ an h istory that our 6 political discourse has been polarized, that intempera te lang uag e has been used, and that alleg ations of ser ious misconduct by

public officia ls have a

bounded. -13-Given the fac t that Rep. Young was at that time Chair of the House of Represe ntatives

Transpor tation Commi ttee, and g iven the deta i l ed re m ar k s he made on the floor of the House of Represe ntatives about t his matter, there is a subst antial publ ic i ntere st in examini n g t h e adequac y of DoJ ’s enfor ceme nt of other ty pes of law g overning the activities of fede ral officia ls, in addition to the expli cit direc tion given by Congr ess to DoJ to investiga te the Coconut Road matter

. 7 The Gove rnment ar g ues t hat P laintiff has failed to e stablish any cog nizable public interest beca use “it is only the conduct of the ag ency holdi n g t h e requested document that can implicate
cogn i z ab l e public interest under FOIA.” Def endant’ s Opposition to Plaintiff’s Cross-Motion for Partial Summary J udg ment and Reply to Plaintiff’s Opposition to Def endant’ s Motion for Summary J udg ment at 13-14 (“D ef.’ s Opp.”) [Dkt. No. 13]. I t then g oes on to state that “the re is sig nificant public interest only

if there is compelling evidence that the age ncy is eng ag ed in illega l activity .” I d. at 14 (citing SafeCar d Servs. v. S.E.C., 926 F. 2d 1197, 1205-06 (D.C. Cir. 1991) (empha sis not in orig inal)). Plaintiff has made it very clea r in its paper s that it is not arg uing that DoJ is eng ag ed in either illega l or neg lige nt action. There fore , i t i s n o t corr ect that Plaintiff must provide compelling evidenc e of a

ny such conduc t on the part of D oJ

. I t is only when a reque st er i s making such alleg ations of illega l or otherwise improper conduct that “compe lling” evidenc e must be offe red demonstrating such behavior

. ACL U, 655 F.3d
at 14. I n ACL U, the Court of Appea ls expli citly distinguished situations in which that require ment

For example, see Common Cause v. Nat’ l Archive s and Recor ds Serv., 628 F.2d 179, 183 n. 10 7 (D.C. Cir. 1980) (regarding the Fe dera l Corrupt Practice s Act); Wash. Post Co. v. U.S. Dep’ t of Hea lth and Human Servs., 6 9 0 F. 2 d 252, 265 (D.C. Cir. 1982) (re g arding conflict-of -intere st information), and Dow J ones & Co. v. U.S. Dep’ t of J ustice, 724 F. Supp. 985, 9 9 0 -9 1 (D .D.C. 1989) (r eg arding disclosure statutes). -14-is applicable from the situation prese nted in this case wher e a FOIA reque ster is “not (or at least not

only ) seeking to show that the g overnme nt’s

. . . policy is leg ally improper

. . . .” I d

. at 14. The Court ruled that evidenc e of such misconduct is not require d in that instan ce . “‘ [ M ] atters of substantive law enf

orce ment policy

. . . are proper ly the subject of public conce rn,’ whether or not the policy in question is lawful.” I d. (quoting Reporter s Comm., 489 U.S. at 766, n. 18). The Court explained that the fac t that the ACL U did not sug g est that the DoJ activity at i s sue was leg ally improper, “distinguishes this case from case s like our rec ent decision in Bla ckwe ll v. FB I , 646 F.3d 37 (D.C. Cir. 2011).” I d. at 14 n. 22. See Judi cial Watch, I nc. v. U.S. Dep’ t of Homeland Sec ’y , 8 598 F. Supp. 2d at 97. Finally , in Multi Ag Media, the Court of A ppeals re iterate d, ref

err ing to Repor

ters Comm. and U.S. Depa

rt m en t o f Defense v. FL RA (“F L RA), 510 U.S. 487, 495 (1994), that the rele vant public interest under FOI A is “the extent to which disclosure [of requ ested files] would serve the ‘core purpose of the FOIA’ which is ‘contribut[ing] signific antly to public understanding of th e opera tions and activities of the g overnm en t

. ’” 515 F.3d at 1230-31 (quoting FL RA, 510 U.S. at 495). Thus, it is clea

r that there is no require ment that a FOIA reque ster must alway s alleg e that the Gover nment is acting illega lly

in order to e stablish the exi stence of a substantial public intere st. T h e Gover

nment also arg ues that “[w]ere the law as Plaintiff claims, Plaintiff could see k

rec ords about any

decision to prosec ute or not to prosec ute.” De f.’s Opp. at 14. This is known as the time-worn “opening of the flood g ates” arg ument. As is usually the case with such arg uments,

I n Bla ckwe ll, a convicted felon soug ht “informa tion from the FBI t h at h e believes would show 8 misconduct by

fede ral investig ators and pr osecutors ha ndling his ca se.” 646 F .3d at 39. -15-it vastly overstate s the perc eived dang er and ignor es the fac t that once a Vaug hn I ndex is filed, the 9 Court will m ak e a s p ec i fi c individualiz ed decision for eac h document as to whether it should be reda cted or

totally withheld pursuant to Exempti on 6 and Exemption 7(C). 3. Balan cing of

P rivacy and P ubl ic Intere sts The Court c oncludes that the balanc ing of Rep. Young ’s privac y interest ag ainst the public interest in rele asing the reque sted documents tips strong ly in favor of the public interest. As alre ady explained, Rep. Young ’s private interest is m i n i m al , albeit not de minimis , g iven that DoJ ’s in v es t igation of him is not a secr et and that he himself publicly announce d the results of that investiga tion and discussed his involveme nt in the proce eding s. Above all, beca use rele ase of this information would “c ontribute signif icantly to public understanding

of the ope rations or a ctivities of the g overnme nt,” the public interest in rele asing this information is very strong

. Consumer’s Ctr., 554 F.3d at 1051 (citation and interna l q uotations omitted). The public needs to know how DoJ

car ried out its statutory duties to investigate alleg ations of briber y an d corr uption of members of Congr ess. That is the purpose of F OI A. For all th e f

o r g o in g rea sons, the Court conclude s that the Gover nment’s Motion for Summary J udg ment will be denied , the Plaintiff’s Cross-Motion for Partial S u m m ary J udg ment will be granted , and the Gover

nment will be order ed to submit a Vaug hn I ndex within 60 days of the date of thi s Opi nion

.

J anuar y 10, 2012 /s/ Glady s Kessler United States District J udg e During briefing , and consideration of the Vaug hn I ndex, the Court can, if deeme d appropr iate, seal 9 the proc eeding s until a final decision is rea ched. -16-