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Williams v. United States Department of Justice

United States District Court, D. Utah

December 9, 2019

DENNIS O. WILLIAMS, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART THE CROSS MOTIONS FOR SUMMARY JUDGMENT

          TED STEWART, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Cross Motions for Summary Judgment. For the reasons discussed below, the Court will grant in part and deny in part the Summary Judgment Motions.

         I. BACKGROUND

         This case arises out of two Freedom of Information Act (“FOIA”) requests made by Plaintiff Dennis O. Williams (“Mr. Williams”). Mr. Williams is a former special agent with the Federal Bureau of Investigation (“FBI”) who alleged wrongdoing by various FBI officials.

         On July 17, 2015, Mr. Williams submitted a FOIA request to the DOJ Mail Referral Unit (the “Whistleblower Request”). Mr. Williams sought:

(1) All documents/records that, directly or indirectly, relate to, report on or concern Mr. Williams having been designated a “Whistle Blower” by the Department of Justice's Office of Professional Responsibility and what was done by the Department of Justice and/or the Office of Professional Responsibility to protect him throughout his career with the FBI, including legal opinions, correspondence or other communications to or from the FBI personnel, the General Accounting Office, Office of Special Investigations, Office of Inspector General and/or any member of the Senate Judiciary Committee regarding these matters.
(2) The complete investigative file(s) of the Department of Justice and/or Office of Professional Responsibility concerning Mr. Williams and/or his complaints about corruption within the FBI.[1]

         Mr. Williams' request was subsequently forwarded to the Office of Professional Responsibility (“OPR”) and the FBI. In response to Mr. Williams' request, OPR provided several documents but withheld 516 pages. The FBI similarly released several pages but withheld 16 pages.

         On February 21, 2017, Mr. Williams submitted a second FOIA request (the “Pickard Request”), this one to the Criminal Division of the United States Department of Justice (“Criminal Division”). Mr. Williams requested “any and all records pertaining to any referral to the DOJ Criminal Division for possible prosecution of Thomas Pickard” and “any and all records that pertain to recommendations and his suitability to become an FBI Assistant Director or Acting FBI Director.”[2]

         On February 27, 2017, the Criminal Division provided a Glomar response, [3] stating that it could neither confirm nor deny the existence of records responsive to Mr. Williams' request.[4] Mr. Williams appealed that decision, and it was upheld by the Department of Justice's Office of Information Policy.[5]

         Mr. Williams brought this action seeking the 532 withheld pages and a response to the Pickard Request. Both parties now move for summary judgment. The Court previously granted Mr. Williams' Motion for an In Camera Review, [6] and the Court reviewed all the withheld documents.

         II. SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[7] In considering whether a genuine dispute of material fact exists, the Court determines whether a reasonable jury could return a verdict for the nonmoving party in the face of all the evidence presented.[8] The Court is required to construe all facts and reasonable inferences in the light most favorable to the nonmoving party.[9]

         “Cross-motions for summary judgment are to be treated separately; the denial of one does not require the grant of another.”[10] “When the parties file cross motions for summary judgment, ‘we are entitled to assume that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to material facts.'”[11]

         III. DISCUSSION

         “FOIA was enacted to enable the public to examine government records.”[12] “The general rule under FOIA is that a person is entitled to copies of a federal agency's records upon making a request that ‘reasonably describes such records' and that complies with required procedures for such requests.”[13] However, certain categories of records are exempt from disclosure.[14] Relevant here are Exemptions 5, 6, and 7(C).

         Exemption 5 exempts from disclosure “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.”[15] This exemption “protects documents that would be covered by any privilege that an agency could assert in a civil proceeding. One such privilege is the deliberative process privilege, which shields ‘documents reflecting advisory opinions, recommendations and deliberations [comprising] part of a process by which governmental decisions and policies are formulated.'”[16] To fall under this exemption, “[p]rivileged documents must be both predecisional and deliberative.”[17] Generally, purely factual materials are not privileged under the exemption. However, factual materials may be privileged if “(1) they are inextricably intertwined with deliberative materials, or (2) their disclosure would reveal deliberative material.”[18]

         Exemption 6 exempts “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”[19] “‘Similar files' refers broadly to ‘detailed Government records on an individual which can be identified as applying to that individual.'”[20] “In determining whether the release of such information would ‘constitute a clearly unwarranted invasion of personal privacy,' [the Court] must balance ‘the public interest in disclosure against the privacy interest Congress intended the exemption to protect.'”[21] In doing so, the Court “must assess the extent to which disclosure would contribute to the ‘public understanding of the operations or activities of the government,' not the interests of the requesting party.”[22]

         Finally, Exemption 7(C) exempts “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.”[23] “Exemption 7(C) is similar to, but more protective of privacy than, Exemption 6.”[24] “Like Exemption 6, under Exemption 7(C) we balance the public's interest in obtaining ‘[o]fficial information that sheds light on an agency's performance of its statutory duties' against an individual's interest in maintaining privacy.”[25] “Disclosure is in the public interest when it is ‘likely to contribute significantly to public understanding of the operations or activities of the government.'”[26]

         “In considering whether information should be disclosed, two guiding principles apply. First, FOIA is to be broadly construed in favor of disclosure. Second, its exemptions are to be narrowly circumscribed.”[27] Moreover, FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt . . . .”[28] With these principles in mind, the Court will consider the respective responses to Plaintiff's FOIA requests.

         A. OPR

         OPR, relying on Exemption 5 and 6, withheld 516 pages. With respect to Exemption 5 it withheld two categories of documents: (1) attorney notes and emails, and memoranda which reflect the attorney's analysis of Mr. Williams' whistleblower retaliation claim; and (2) documents related to witness interviews conducted in connection with the investigation of Mr. Williams' whistleblower complaint.

         As stated, to be covered by Exemption 5, documents must be both predecisional and deliberative. There appears to be no dispute that the withheld documents were predecisional. Therefore, the question becomes whether they are deliberative. Whether a document is “deliberative” is “difficult to cabin.”[29] The Court must separate deliberative material from purely factual materials. As stated, factual materials are not privileged under Exemption 5 unless they are inextricably intertwined with deliberative materials or their disclosure would reveal deliberative materials.

         The Tenth Circuit addressed the need for a severability analysis in Trentadue v. Integrity Committee. There, the court reviewed a document withheld under Exemption 5. While the court agreed that certain portions of the document were privileged, it required the release of factual material contained in the document that was not inextricably intertwined with the deliberative process and would not expose the deliberative process in any meaningful way. Relevant here, the court found that a recitation of historical facts about an investigation was not protected by Exemption 5.[30]

         OPR argues that these documents should be withheld in their entirety for three reasons. First, “documents reflecting an attorney's initial analysis and evaluation of Mr. Williams' whistleblower retaliation claim are plainly internal, as they are intended only for use by OPR personnel.”[31] Second, “these notes, emails, and memoranda are predecisional, as they are [sic] created to assist OPR in conducting the investigation and making a final decision as to whether the complaint has stated a claim for retaliation.”[32] Third, “the documents are deliberative, as they reflect the attorney's thoughts and impressions about the complaint, the investigation, and how to address certain issues.”[33]

         The parties do not dispute that the withheld documents were created for OPR personnel and are predecisional. The issue here is whether the documents are deliberative in contrast to “purely factual, investigative matters . . . .”[34] The Supreme Court has made clear that Exemption 5 does not protect “memoranda consisting only of compiled factual material or purely factual material contained in deliberative memoranda and severable from its context.”[35] Courts also have routinely concluded that Exemption 5 does not apply to interview notes, transcripts, and investigative work products that do not contain an attorney's opinions, rationale, recommendations, or conclusions.[36]

         First, some of the documents were properly withheld because they are deliberative and non-segregable. OPR-29 is an email correspondence between two OPR employees discussing strategy and seeking advice on how best to interview a witness. This material is deliberative, non-segregable, and properly withheld. OPR-31, OPR-32, and OPR-33 are handwritten notes recording the author's impressions and opinions of certain events in the Williams investigation. As such, these were properly withheld. OPR-54, OPR-55, and OPR-68 are handwritten notes by an attorney assessing the Williams investigation and strategizing future investigatory means. These too were properly withheld. Finally, OPR-69 was properly withheld because it is an internal memorandum containing the author's recommendations for the investigation's future.

         Second, some documents were improperly withheld in full because they contain segregable information. OPR-28 is a chronological summary of Williams' complaint that contains factual statements and the author's conclusions and impressions of certain events. The factual statements are segregable from the author's deliberative commentary and thus OPR should redact the deliberative commentary, redact any personal information under Exemption 6, and release the remainder of this document. OPR-39 primarily contains a factual summary of a witness interview that-subject to Exemption 6-should be disclosed. OPR, however, may withhold the interviewer's commentary on the last page that contains the interviewer's impressions of the witness as those comments are deliberative. OPR-45 is an interviewer's notes that primarily contain factual statements taken from a witness and are therefore not deliberative. The document also contains handwritten notes in the margins that contain the interviewer's thoughts and impressions and are deliberative. OPR-45 was improperly withheld in full and should be produced except for the handwritten notes in the margins.

         Finally, most of the documents were improperly withheld under Exemption 5 but should be partially withheld under Exemption 6. The remaining documents not discussed above are handwritten notes or transcripts of witness interviews.[37] These documents are factual as they do not contain opinions, rationale, recommendations, or conclusions of the interviewer or author. As such, they should be produced in their entirety except for those portions subject to Exemption 6. Also, based on the Court's review, it appears that some of these documents contain discussion of classified information.[38] OPR should review these documents before release and may withhold any classified information under FOIA Exemption 1.

         With respect to Exemption 6, OPR withheld the following categories of documents: (1) names of subjects of OPR's investigation into whistleblower retaliation; (2) names of third parties who are not witnesses or subjects in OPR's investigation into Mr. Williams' whistleblower retaliation complaint; (3) internal emails, handwritten notes, or internal memoranda prepared by OPR attorneys which include the names of witnesses or potential witnesses to OPR's investigation; and (4) attorney-prepared outlines for witness interviews, attorney notes of confidential witness interviews, and confidential transcripts of witness interviews.

         In analyzing Exemption 6, the Court must balance the public interest in disclosure against the privacy interest Congress intended the exemption to protect. “The ‘public interest' to be weighed in Exemption 6's balancing test is the extent to which disclosure would serve the ‘core purpose' of FOIA.”[39] “The core purpose of FOIA is, of course, to contribute to the ‘public understanding of the operations or activities of the government.'”[40] “The type of privacy interests Congress intended to protect under Exemption 6 ‘encompass[ ] the individual's control of information concerning his or her person.'”[41] “Such private information includes, for example, an individual's name and home address.”[42]

         In Trentadue v. Integrity Committee, the Tenth Circuit made clear that determining whether disclosure is protected by Exemption 6 is highly fact specific. There, the court found that the identities of four low-level employees were protected from disclosure because disclosing their names would shed little light on the operation of government.[43] However, the court noted that “[t]he public interest in learning of a government employee's misconduct increases as one moves up an agency's hierarchical ladder.”[44] Further, where the names of individuals had already been disclosed in the public record, there was less chance of a clearly unwarranted invasion of privacy.[45]

         Moreover, while Exemption 6 protects the disclosure of the identity of a particular individual, “an agency must still disclose the fact that somebody was accused of misconduct and what steps, if any, were subsequently taken.”[46] Although the Government may be able to withhold the names of witnesses and subjects of the investigation, it must still release all reasonably segregable material.

         Here, Defendant relies on Exemption 6 to withhold the bulk of the 516 withheld pages and argues that Exemption 6 protects both the identity of individuals mentioned during Mr. Williams' investigation and all documentation related thereto.[47] This use of Exemption 6 is legally incorrect, overbroad, and swallows FOIA's general rule favoring disclosure. Defendant is correct that the OPR documents contain the names of unnoteworthy individual witnesses, low-level governmental employees, and other obscure individuals who have a strong privacy interests in not having their identity revealed. For example, in OPR-34 the name and phone number of a witness that called the FBI regarding Mr. Williams should be redacted. Mr. Williams has not advanced any argument about why these obscure individuals' names are of any interest to the public. For these reasons, the Court concludes that the names of low-level governmental employees, witnesses, and other individuals whose identities would shed little light on the operation of government should be withheld. Defendant, however, incorrectly assumes that because these individuals have a privacy interest, all outlines, notes, and transcripts related to those individuals are also protected.[48] Interestingly, Defendant makes no argument about why all documentation related to these individuals should also be withheld, or why redacting the protected individuals' names is insufficient to protect the individuals' privacy interest. The Supreme Court has made clear that this Court is to conduct a severability analysis to determine which ...


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