United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 3, 2017 Decided April 21, 2017

No. 16-5138

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

APPELLANT

v.

UNITED STATES DEPARTMENT OF JUSTICE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-00592)

David L. Sobel argued the cause for appellant. With him 

on the briefs was Adam J. Rappaport.

William E. Havemann, Attorney, U.S. Department of 

Justice, argued the cause for appellee. With him on the brief 

were Benjamin C. Mizer, Principal Deputy Assistant Attorney 

at the time the brief was filed, and Matthew M. Collette, 

Attorney.

Before: TATEL, SRINIVASAN and WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS.
2

WILKINS, Circuit Judge: Citizens for Responsibility and 

Ethics in Washington (CREW) appealed from an order of the 

District Court granting summary judgment in favor of the 

United States Department of Justice (DOJ) and denying 

CREW’s cross-motion for partial summary judgment. In 

granting summary judgment, the District Court agreed that 

Exemption 5 in the Freedom of Information Act (FOIA) 

shielded certain Federal Bureau of Investigation (FBI) 

correspondence and that Exemptions 6 and 7(C) could be 

invoked to protect names and other personal information

contained in responsive records. 

We reverse the District Court’s grant of summary 

judgment. We conclude that the Government’s assertion of 

Exemption 5 was untimely and, before ruling on Exemptions 6 

and 7(C), a more particularized balancing of the interests at 

stake is required.

I.

“In 2004, the Federal Bureau of Investigation (FBI) 

opened a wide-ranging public corruption investigation into the 

activities of former lobbyist Jack Abramoff. The investigation 

yielded 21 guilty pleas or convictions by jury.” CREW v. DOJ

(CREW I), 746 F.3d 1082, 1087 (D.C. Cir. 2014). Two of those 

convicted had been senior aides to former House of 

Representatives Majority Leader Tom DeLay. Id. Although 

the FBI never acknowledged whether DeLay was a subject of 

their investigation, in August 2010, DeLay himself announced 

that DOJ had informed him that it would not bring charges 

against him. Id.

In October 2010, CREW filed a FOIA request with the 

FBI, a component of DOJ. The request sought information 

related to DOJ’s investigation of DeLay, including records 
3

related to DOJ’s investigation of relationships between DeLay 

and fourteen specified individuals and entities.

DOJ declined to provide any requested documents on the 

basis that, “because the requested records involved third 

parties, they were generally exempt from disclosure and could 

not be released absent express authorization from each third 

party, proof of the third party’s death 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.” Id. at 1089

(internal quotation marks omitted). 

After exhausting its administrative remedies, CREW filed 

suit against DOJ. Id. The parties filed cross-motions for 

summary judgment. Id. In support of its motion, DOJ 

submitted a declaration asserting that “all responsive 

documents were categorically exempt under Exemption 7(A) 

and Exemptions 6 and 7(C).” Id. at 1090 (citations omitted). 

The Government also invoked Exemptions 2, 3, 7(D) and 7(E) 

to withhold some portions of the responsive material.1

 Id. 

CREW specifically sought prosecution memoranda, but the 

declaration stated that no prosecution memoranda were found 

in the FBI’s case file. Id. at 1090 n.1. The District Court 

granted DOJ’s motion for summary judgment, agreeing with 

DOJ on the application of each cited exemption. Id.

 1 Exemption 2 applies to information “related solely to the internal 

personnel rules and practices of an agency”; Exemption 3 applies to 

certain information “specifically exempted from disclosure by 

statute”; Exemption 6 applies to “personnel and medical files and 

similar files the disclosure of which would constitute a clearly 

unwarranted invasion of personal privacy”; and Exemption 7 applies 

to certain categories of “records or information compiled for law 

enforcement purposes.” 5 U.S.C. § 552(b).
4

On appeal, we reversed the grant of summary judgment 

and remanded to the District Court. Id. at 1102. We found that 

DOJ had “not met its burden to justify categorical withholding 

under Exemption 7(A) or 7(C)” and had not “provided 

sufficient detail at this stage for a court to determine whether a 

portion of the requested records may be withheld under 

Exemption 3, 7(D) or 7(E).”2 Id.

Of particular relevance here, we noted the “weighty public 

interest in shining a light on the FBI’s investigation of major 

political corruption and the DOJ’s ultimate decision not to 

prosecute a prominent member of the Congress for any 

involvement he may have had.” Id. at 1092-93. “[T]he 

relevant public interest,” we explained, “is not to find out what 

DeLay himself was ‘up to’ but rather how the FBI and the DOJ 

carried out their respective statutory duties to investigate and 

prosecute criminal conduct.” Id. at 1093 (emphasis omitted). 

Specifically, we noted the likelihood that the requested 

information would “reveal much about the diligence of the 

FBI’s investigation and the DOJ’s exercise of its prosecutorial 

discretion: whether the government had the evidence but 

nevertheless pulled its punches.” Id.

Foreshadowing the present controversy, we also noted that 

persons other than DeLay might be mentioned in investigative 

files and that those individuals “have a substantial privacy 

interest in preventing disclosure of their names in law 

enforcement files.” Id. at 1092 n.3. In recognition of this 

privacy interest, “the names and identifying information of 

 2 CREW did not object to the District Court’s grant of summary 

judgment with respect to the application of Exemption 2, which 

applied only to internal FBI telephone and fax numbers. Id. at 1099 

n.7.
5

third parties contained in investigative files are presumptively 

exempt.” Id. at 1096.

Since we had rejected the categorical withholding of 

responsive documents, the task for DOJ on remand was to 

“make a more particularized showing as to what documents or 

portions thereof are exempt.” Id. The District Court then had 

the responsibility to “weigh what information may be withheld 

under Exemption 7(C) and whether any information is 

reasonably segregable and may be disclosed.” Id.

After our decision, “the FBI ran its search for responsive 

records anew, using the same parameters and garnering the 

same results as its initial search.” CREW v. DOJ (CREW II), 

174 F. Supp. 3d 415, 419 (D.D.C. 2016). The search yielded a 

total of 328 pages of responsive material, 124 pages of which 

were released to CREW, albeit with redactions. Id. at 420. 

The FBI withheld in full the remaining 204 pages. Id. To

justify its redactions and withholding, the FBI invoked FOIA 

Exemptions 3, 5, 6, 7(C), 7(D) and 7(E).3

 Id. The Government

again moved for summary judgment, which CREW opposed 

with respect to the application of Exemptions 5, 6 and 7(C). Id. 

In a March 30, 2016 Memorandum Opinion and Order, the 

District Court again granted the Government’s motion for 

summary judgment and denied a cross-motion for partial 

summary judgment filed by CREW. Id. at 427.

II.

On appeal, CREW raises two issues. First, CREW asserts 

that the District Court erred in permitting the FBI to rely on 

Exemption 5, which it had not raised during the initial round of 

 3 Exemption 5 covers “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).
6

summary judgment. Second, CREW alleges error in the 

District Court’s allowing the FBI to redact names of all 

individuals other than DeLay and Abramoff that were 

contained in responsive records.

A.

In FOIA cases, the Government generally “must assert all 

exemptions at the same time, in the original district court 

proceedings.” Maydak v. DOJ, 218 F.3d 760, 764 (D.C. Cir. 

2000). “[T]he delay caused by permitting the government to 

raise its FOIA exemption claims one at a time interferes both 

with the statutory goals of efficient, prompt, and full disclosure 

of information, and with interests of judicial finality and 

economy.” Id. (citations omitted) (internal quotation marks 

omitted).

We have recognized two exceptions to this general rule. 

The first is for “extraordinary circumstances where, from pure 

human error, the government failed to invoke the correct 

exemption and will have to release information compromising 

national security or sensitive, personal, private information 

unless the court allows it to make an untimely exemption 

claim.” Id. at 767. The second is “where a substantial change 

in the factual context of the case or an interim development in 

the applicable law forces the government to invoke an 

exemption after the original district court proceedings have 

concluded.” Id.

The Government does not contend that either exception is 

applicable here. In fact, the District Court noted that the 

Government’s “briefing contains no claim of changed factual 

or legal circumstances, no mea culpa or acknowledgment [of] 

mistake, and indeed no explanation at all as to its failure to 
7

assert Exemption 5 in regards to the FBI’s records in the 

original proceedings.” CREW II, 174 F. Supp. 3d at 423.

Nevertheless, the District Court allowed the Government 

to rely on Exemption 5. The District Court observed that

CREW’s objection was solely on waiver grounds and CREW 

did not advance any substantive argument for why Exemption 

5 would not cover the pages at issue. See id. at 421, 423-24. 

In the District Court’s view, precluding the Government from 

applying Exemption 5 “would not advance the policy goals 

supporting the Maydak rule,” id. at 424, because CREW’s 

failure to present objections to Exemption 5 on the merits 

meant it had effectively conceded the issue and there was “no 

occasion for delaying the process with presentation and 

consideration of fresh arguments about the applicability of the 

exemption,” id. at 423.

As we have previously explained, though, “[t]he 

timeliness rule is concerned not just with efficiency in a given 

case, but also with efficiency in the long run, and it disserves 

this broader goal to permit untimely defenses, even after they 

have been argued, to prevail.” Wash. Post Co. v. Dep’t of 

Health & Human Servs., 795 F.2d 205, 209 (D.C. Cir. 1986). 

It may well be that, in this particular case, the District Court 

could just as quickly have considered and accepted the 

Exemption 5 defense as rejected it as untimely. But this alone 

does not answer the critical question of whether the ends of 

promptness and efficiency are better served by nevertheless 

preventing the Government from invoking a new exemption on

remand following an appeal. If Exemption 5 had been invoked 

at the outset, we could have resolved the merits of its 

application in the prior appeal. A robust timeliness rule 

encourages the Government to present all its arguments the 

first time around. Weakening that rule lessens the incentive. 

In addition, requiring a FOIA requester to brief and argue the 
8

merits of newly asserted defenses – rather than simply 

adverting to the timeliness rule – imposes additional costs on 

that party. Cf. id. (“It would be grotesque to present the [FOIA 

requester] with the bill for an entertainment which it alone 

insisted should not have been staged.”). These considerations 

suggest that a robust timeliness rule well serves FOIA’s goal of 

a prompt and efficient process. Of course, there will be 

“unusual situations, largely beyond the government’s control,” 

Maydak, 218 F.3d at 767, in which other considerations 

override those motivating the timeliness rule – this Court’s 

previously articulated exceptions address such circumstances –

but the Government has not made any claim that this is such a 

case.

Before the District Court, the Government asserted that it 

had in fact raised Exemption 5 in the initial round of summary 

judgment. See CREW II, 174 F. Supp. 3d at 422. On appeal, 

the Government has abandoned that contention, in apparent 

recognition of the fact that Exemption 5 was asserted only by 

the DOJ’s Criminal Division to shield prosecution memoranda, 

not by the FBI to protect the six pages of an electronic 

communication that are now at issue. Id.

The Government continues to argue, though, that the fact 

that the Criminal Division cited Exemption 5 in the original 

proceedings precludes any inference of gamesmanship or 

sandbagging with respect to the FBI’s initial failure to make a 

similar assertion. That contention is belied by the fact that DOJ 

utilized a decentralized process, in which the Criminal Division 

and the FBI independently decided whether or not to release 

responsive records that originated in their respective 

components. Id. The decision of the Criminal Division to 

invoke Exemption 5 therefore tells us nothing about why the 

FBI chose not to cite it. In any event, the application of the 
9

Maydak timeliness rule does not require a finding of bad faith 

or intentional gamesmanship.

As the Government’s invocation of Exemption 5 was 

untimely and the Government has not provided a sufficient 

basis for declining to apply the Maydak timeliness rule, 

Exemption 5 cannot shield any of the information sought by 

CREW in this appeal.

B.

We turn next to the question of whether summary 

judgment was proper with respect to Exemptions 6 and 7(C). 

FOIA’s Exemption 6 encompasses “personnel and 

medical files and similar files the disclosure of which would 

constitute a clearly unwarranted invasion of personal privacy,” 

while Exemption 7(C) protects “records or information 

compiled for law enforcement purposes, but only to the extent 

that the production of such law enforcement records or 

information . . . could reasonably be expected to constitute an 

unwarranted invasion of personal privacy.” 5 U.S.C. 

§ 552(b)(6)-(7). When information is claimed to be exempt 

from disclosure under both provisions, courts “focus . . . on 

Exemption 7(C) because it provides broader privacy protection 

than Exemption 6 and thus establishes a lower bar for 

withholding material.” CREW I, 746 F.3d at 1091 n.2 (internal 

quotation marks omitted). 

When examining an assertion of Exemption 7(C), a court 

must “balance the [ ] privacy interest against the public interest 

in disclosure.” Id. at 1091 (alteration in original). “At all 

times, courts must bear in mind that FOIA mandates a strong 

presumption in favor of disclosure, and that the statutory 

exemptions, which are exclusive, are to be narrowly 
10

construed.” ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 5 (D.C. 

Cir. 2011) (alteration omitted) (citations omitted) (internal 

quotation marks omitted).

This dispute over the application of the personal privacy

exemptions centers on whether the Government is permitted to 

redact the names (and other personally identifying information) 

of individuals other than DeLay and Abramoff from responsive 

records. These names fall into three general categories. First, 

records may contain names of FBI or other federal government 

personnel. CREW does not challenge the redaction of this 

category of names. Second, individuals may be named or 

otherwise identified who have not previously been publicly 

implicated in the corruption investigation. Where, as here, 

there is no “compelling evidence that the agency is engaged in 

illegal activity,” such names are “categorically . . . exempt 

from disclosure.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 

1206 (D.C. Cir. 1991).

Finally, there is the third category: individuals who have 

already been publicly identified – either through agency press 

releases or testimony in open court – as having been charged, 

convicted or otherwise implicated in connection with the public 

corruption investigation that encompassed Abramoff and 

DeLay. CREW attached eight press releases to its briefing 

before the District Court, containing the names of sixteen such 

individuals in addition to Abramoff. As explained below, these 

individuals have a diminished privacy interest in certain 

information that may be contained in the records at issue, and 

therefore the categorical rule of non-disclosure announced in 

SafeCard does not apply to them.

Determining whether the cited FOIA exemptions apply to 

this third category of individuals requires a weighing of the 

privacy interests and public interest at issue in this case. As we 
11

explained at length in our previous opinion, see CREW I, 746 

F.3d at 1092-96, a “weighty public interest” is present here: the 

interest in finding out “how the FBI and the DOJ carried out 

their respective statutory duties to investigate and prosecute 

criminal conduct.” Id. at 1092-93. This interest is served by

disclosures that “shin[e] a light on the FBI’s investigation of 

major political corruption and the DOJ’s ultimate decision not 

to prosecute a prominent member of the Congress for any 

involvement he may have had.” Id. at 1093.

Moving to the opposing side of the scale, we have 

observed that “individuals have an obvious privacy interest 

cognizable under Exemption 7(C) in keeping secret the fact 

that they were subjects of a law enforcement investigation.” 

Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 894 (D.C. 

Cir. 1995). “That privacy interest also extends to third parties 

who may be mentioned in investigatory files, as well as to 

witnesses and informants who provided information during the 

course of an investigation.” Id. Even after an individual has 

been convicted, we have recognized that the individual retains 

a privacy interest in the facts of his conviction. See ACLU, 655 

F.3d at 7; cf. U.S. Dep’t of Justice v. Reporters Comm. For 

Freedom of the Press, 489 U.S. 749, 763-65 (1989). However, 

privacy interests of individuals who have been convicted or 

pled guilty “are weaker than for individuals who have been 

acquitted or whose cases have been dismissed” and are “plainly 

substantially weaker than the privacy interests of individuals 

who have been investigated but never publicly charged at all.” 

ACLU, 655 F.3d at 7; cf. Reporters Comm., 489 U.S. at 763 

n.15 (“The common law recognized that one did not 

necessarily forfeit a privacy interest in matters made part of the 

public record, albeit the privacy interest was 

diminished . . . .”).
12

These initial observations do not resolve the question of 

whether the Government redactions of names were proper in 

this case. On the one hand, the substantial public interest

present here may outweigh privacy interests that have been 

diminished by prior disclosures, including through guilty pleas 

and convictions. On the other hand, a responsive document 

could reveal new information about a person’s conduct, going 

beyond the facts in the public record related to that person’s 

conviction and sentencing. Under such circumstances, that 

individual would retain a privacy interest in the non-disclosure 

of the new information.

“Because the myriad of considerations involved in the 

Exemption 7(C) balance defy rigid compartmentalization, per 

se rules of nondisclosure based upon the type of document 

requested, the type of individual involved, or the type of 

activity inquired into, are generally disfavored.” Stern v. FBI, 

737 F.2d 84, 91 (D.C. Cir. 1984). The privacy interests of 

individuals who have not been convicted in connection with 

this investigation – and even more so those who have not been 

publicly linked with the investigation whatsoever – differ 

greatly from those of individuals who were convicted or pled 

guilty for their roles. Connecting the names of individuals to

information contained in the documents at issue could add 

much, or not at all, to the public’s understanding of how the 

Government carried out its investigation and decision not to 

prosecute DeLay. There is little we can conclude in the 

abstract. This area is simply not well-suited to categorical 

determinations.

For this reason, we reverse the grant of summary judgment 

and remand to the District Court. With respect to those 

individuals with diminished privacy interests, the withholding 

of information pursuant to Exemptions 6 and 7(C) must be 

subjected to a particularized weighing of the public and privacy 
13

interests that would be implicated by the disclosure sought by 

CREW. When conducting this balancing, it is CREW’s burden 

to “show the information is likely to advance” the public 

interest in learning whether DOJ pulled its punches. Nat’l 

Archives & Records Admin. v. Favish, 541 U.S. 157, 172 

(2004). For its part, the Government must account for the 

privacy interests at stake, recognizing that previous disclosures 

or admissions may have diminished those interests.

***

For the foregoing reasons, the grant of summary judgment 

is reversed and we remand to the District Court for proceedings 

consistent with this opinion.

So ordered.