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Case TitleLARDNER v. DEPARTMENT OF JUSTICE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2008cv01398
Date Filed2008-08-12
Date Closed2009-07-31
JudgeJudge Colleen Kollar-Kotelly
PlaintiffGEORGE LARDNER
DefendantDEPARTMENT OF JUSTICE
AppealD.C. Circuit 09-5337
Documents
Docket
Complaint
Complaint attachment 1
Opinion/Order [19]
FOIA Project Annotation: Judge Colleen Kollar-Kotelly has ruled that the Office of the Pardon Attorney must disclose the identities of individuals who were denied clemency or commutation of their sentence by former President George W. Bush. In so doing, Kollar-Kotelly rejected journalist George Lardner's claim that the government was foreclosed by the doctrine of collateral estoppel from even arguing that the records were exempt since Judge John Bates had ruled in favor of Lardner in 2005 when he requested quite similar records. Nevertheless, after appraising OPA's claims that the records were protected by Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records), Kollar-Kotelly concluded that Exemption 6 did not protect the records, and even further, that the records did not qualify as law enforcement records in the first place. Lardner, who has been researching a book on presidential pardons, requested information about the identities of those whose petitions had been denied by Bush. OPA declined to disclose any records, citing both Exemption 6 and 7(C). Lardner then filed suit. Lardner has sued the Justice Department before for similar records and he initially contended that Bates' 2005 ruling in his favor prevented Justice from litigating the same position again. Kollar-Kotelly rejected Lardner's claim because, although the two parties were the same, the actual records at issue in both suits were not identical. The 2005 suit involved "letters of advice" from the Attorney General to the President concerning whether to grant or deny requests for pardons for the period 1960 to 1989. Kollar-Kotelly noted that "the FOIA request at issue here, and the materials responsive to that request, thus differ materially from the FOIA request and responsive materials at issue in the prior action. Unlike in Lardner I, in which Plaintiff's request for disclosure of the identities of unsuccessful applicants was cabined to only those 141 names that happened to appear in a select number of pardon files specifically requested by the Plaintiff and dating from President Reagan's administration or earlier, Plaintiff's current request seeks disclosure of lists retained by OPA identifying the more than 7,000 applicants who were recently denied clemency by President Bush." She observed that "in particular, although both actions broadly confront the propriety of withholding the identities of unsuccessful clemency applicants, the circumstances in which the withholdings were made vary substantially between the two matters. Moreover, Plaintiff seeks to apply the doctrine to litigation of a legal issue, not a factual one, and in such circumstances, the D.C. Circuit has counseled that there is 'more room for a second look when the issue is one of law than when a fact question is at stake.'" The agency argued that disclosure would constitute a double stigma for the individuals because it would not only identify them as having been convicted, but also of having been deemed unworthy of a pardon or commutation. Kollar-Kotelly disagreed, noting instead that "Plaintiff's FOIA request seeks disclosure only of the fact that an individual has applied for and been denied clemency. That is, Plaintiff does not seek disclosure of any substantive, personal information located in the actual clemency files." She pointed out that most petitions were rejected. She added that "although public disclosure of the President's decision to grant clemency arguably has a positive impact on an individual applicant, the Court is not persuaded that the converse is trueâ€"i.e., that public disclosure of the President's decision to deny clemency will 'reflect poorly upon '[an individual applicant's] current level of rehabilitation and good character.'" Further, "clemency applicants have no reasonable expectation that OPA will not publicly disclose the existence of their clemency application or the President's eventual decision whether to grant or deny clemency." OPA admitted that it provided such information whenever it received an inquiry about an individual by name. OPA attempted to distinguish the circumstances in Lardner I with those in the present case by arguing that the numbers here were much greater. But Kollar-Kotelly pointed out that "although OPA is correct that the instant FOIA request encompasses a substantially greater number of applicants than those at issue in Lardner I, OPA does not explain how this fact affects an individual applicant's privacy interest. Contrary to OPA's apparent contention, an individual applicant's privacy interest is not somehow magnified simply because other individual applicants' privacy interest may be implicated as well." Kollar-Kotelly pointed out that disclosure of grants of clemency was clearly a matter of public interest. She then observed that "just as disclosure of the names of successful clemency applicants furthers the public's interest in understanding the functioning of the clemency process, so too does disclosure of the identities of unsuccessful clemency applicants 'let citizens know' "what their government is up to."' Moreover, disclosure of the identities of unsuccessful applicants is not only useful for revealing to whom the President has denied clemency, but it also increases the value of the information already in the public domainâ€"i.e., the names of those to whom the President has granted clemency." Although OPA already disclosed individual applicant information on request, it argued that broader availability would heighten the invasion of privacy. Kollar-Kotelly rejected the claim, pointing to the Supreme Court's ruling in Reporters Committee. "The Supreme Court, however, has made it abundantly clear that 'whether an invasion of privacy is warranted cannot turn on the purposes for which the request for information is made.' OPA's focus on the identity of the third-party requester and the manner of disclosure is therefore misplaced." OPA also argued that the identities of unsuccessful applicants would not shed any light on OPA's activities. Kollar-Kotelly, however, pointed out that "the public interest cannot be defined so narrowly. . . [D]isclosure of the identities of the individuals to whom the President has denied clemency serves the public's interest in laying open the executive's exercise of the pardon process for public scrutinyâ€"and the mere fact that disclosure may not also shed light on the substance of the OPA's recommendation and its investigative process does not negate the public interest in disclosure." Kollar-Kotelly questioned whether the records qualified as law enforcement records. She pointed out that OPA had not actually shown that it was a law enforcement agency, although it did argue that its role in dealing with clemency petitions was a law enforcement function. Regardless, Kollar-Kotelly observed that whether or not OPA played a law enforcement role "is not the question now before the Court." She indicated that "Plaintiff does not seek copies of the applicants' actual clemency petitions or any substantive information compiled by the OPA and included in the files of the unsuccessful applicants. Accordingly, the fact that such substantive information may qualify as law enforcement records for purposes of FOIA is irrelevant to the issue at hand." She found that the list of unsuccessful applicants was "the official record of the President's decision to deny clemency to those applicants" and not information compiled for law enforcement purposes. She concluded by noting that "the fact that OPA freely releases the names of unsuccessful clemency applicants to the general public in certain circumstances casts significant doubt on OPA's claim that its records reflecting this information should be treated as confidential law enforcement records that must be protected in order to 'prevent premature disclosure of investigatory materials.'"
Issues: Litigation - Jurisdiction - Failure to State a Claim, Exemption 6 - Invasion of privacy, Exemption 7(C) - Invasion of privacy concerning law enforcement records
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2008-08-121COMPLAINT against DEPARTMENT OF JUSTICE ( Filing fee $ 350, receipt number 4616014343) filed by GEORGE LARDNER. (Attachments: # 1 Civil Cover Sheet)(td, ) (Entered: 08/13/2008)
2008-08-12SUMMONS (3) Issued as to DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (td, ) (Entered: 08/13/2008)
2008-09-042ORDER Establishing Procedures for Electronic Filing for Cases Assigned to Judge Colleen Kollar-Kotelly on September 4, 2008. (SM) (Entered: 09/04/2008)
2008-09-043RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to DEPARTMENT OF JUSTICE served on 8/12/2008. (Zieve, Allison) (Entered: 09/04/2008)
2008-09-114ANSWER to 1 Complaint by DEPARTMENT OF JUSTICE. Related document: 1 Complaint filed by GEORGE LARDNER.(Nebeker, William) (Entered: 09/11/2008)
2008-09-115ORDER. The parties shall confer and propose a schedule for proceeding in this matter. The schedule should address the status of Plaintiff's FOIA request, whether any productions are anticipated in response to Plaintiff's FOIA request, whether a Vaughn index will be required in this case, and should set forth a schedule for the briefing of dispositive motions, if appropriate. The parties shall file the schedule not later than September 30, 2008. Signed by Judge Colleen Kollar-Kotelly on September 11, 2008. (lcckk2) (Entered: 09/11/2008)
2008-09-12Set/Reset Deadlines: Schedule for briefing of dispositive motions due by 9/30/2008 (clv, ) (Entered: 09/12/2008)
2008-09-296STATUS REPORT And Proposed Schedule by GEORGE LARDNER, DEPARTMENT OF JUSTICE. (Nebeker, William) (Entered: 09/29/2008)
2008-10-047SCHEDULING AND PROCEDURES ORDER. The parties shall comply with the following schedule. Dispositive motions shall be filed on or before November 3, 2008, with oppositions filed on or before December 1, 2008, with replies, if any, filed on or before December 22, 2008. This Court stricly adheres to Local Civil Rule 7(h) and may strike pleadings not in conformity therewith. Signed by Judge Colleen Kollar-Kotelly on October 3, 2008. (lcckk1) (Entered: 10/04/2008)
2008-10-06Set/Reset Deadlines: Dispositive Motions due by 11/3/2008. Response to Dispositive Motions due by 12/1/2008. Reply to Dispositive Motions due by 12/22/2008. (gdf) (Entered: 10/06/2008)
2008-10-168STIPULATION by GEORGE LARDNER, DEPARTMENT OF JUSTICE. (Nebeker, William) (Entered: 10/16/2008)
2008-11-039MOTION for Summary Judgment by GEORGE LARDNER (Attachments: # 1 Text of Proposed Order, # 2 Declaration of George Lardner with Exhibits)(Zieve, Allison) (Entered: 11/03/2008)
2008-11-0310MOTION for Judgment on the Pleadings Or, In The Alternative , MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Affidavit Bollwerk Declaration, # 2 Exhibit exhibits A-F)(Nebeker, William) (Entered: 11/03/2008)
2008-11-2011STIPULATION by GEORGE LARDNER, DEPARTMENT OF JUSTICE. (Nebeker, William) (Entered: 11/20/2008)
2008-11-2512Unopposed MOTION for Extension of Time to File Response/Reply as to 9 MOTION for Summary Judgment, 10 MOTION for Judgment on the Pleadings Or, In The Alternative MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Nebeker, William) (Entered: 11/25/2008)
2008-11-26MINUTE ORDER granting 12 Unopposed Motion for Extension of Time to File Response to pending dispositive motions. Accordingly, Defendant shall have until and including December 3, 2008, to respond to pending dispositive motions. Signed by Judge Colleen Kollar-Kotelly on November 26, 2008. (SM) (Entered: 11/26/2008)
2008-12-0113Memorandum in opposition to re 10 MOTION for Judgment on the Pleadings Or, In The Alternative MOTION for Summary Judgment filed by GEORGE LARDNER. (Attachments: # 1 Second Declaration of George Lardner)(Zieve, Allison) (Entered: 12/01/2008)
2008-12-0314Memorandum in opposition to re 9 MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Affidavit Bollwerk 2nd Declaration)(Nebeker, William) (Entered: 12/03/2008)
2008-12-2215REPLY to opposition to motion re 9 MOTION for Summary Judgment filed by GEORGE LARDNER. (Attachments: # 1 Declaration of Allison M. Zieve in Support of Plaintiff's Motion for Summary Judgment)(Zieve, Allison) (Entered: 12/22/2008)
2008-12-2216REPLY to opposition to motion re 10 MOTION for Judgment on the Pleadings Or, In The Alternative MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Nebeker, William) (Entered: 12/22/2008)
2009-02-0217NOTICE OF SUPPLEMENTAL AUTHORITY by DEPARTMENT OF JUSTICE (Nebeker, William) (Entered: 02/02/2009)
2009-07-3118ORDER. Based on the reasoning set forth in an accompanying Memorandum Opinion, the Court GRANTS IN PART and DENIES IN PART Plaintiff's 9 Motion for Summary Judgment and GRANTS IN PART and DENIES IN PART Defendant's 10 Cross-Motion for Summary Judgment. Specifically, the Court DENIES Plaintiff's motion and GRANTS Defendant's motion with respect to the issues of collateral estoppel and segregabilty, but GRANTS Plaintiff's motion and DENIES Defendant's motion with respect to the propriety of withholding the requested information under Exemptions 6 and 7(C). The case is hereby dismissed in its entirety. This is a final, appealable order. Signed by Judge Colleen Kollar-Kotelly on July 31, 2009. (lcckk2 ) (Entered: 07/31/2009)
2009-07-3119MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on July 31, 2009. (lcckk2 ) (Entered: 07/31/2009)
2009-08-0620Joint MOTION for Extension of Time to File Motion For Fees And Costs by GEORGE LARDNER, DEPARTMENT OF JUSTICE (Nebeker, William) (Entered: 08/06/2009)
2009-08-06MINUTE ORDER (paperless) GRANTING the parties' 20 Joint Motion for Enlargement of Time for Seeking Fees and Costs. Accordingly, Plaintiff shall have until and including October 9, 2009 in which to file a motion, if any, for fees and/or costs. Signed by Judge Colleen Kollar-Kotelly on August 6, 2009. (lcckk2 ) (Entered: 08/06/2009)
2009-08-06Set/Reset Deadlines: Motion due by 10/9/2009. (dot, ) (Entered: 08/06/2009)
2009-09-2921NOTICE OF APPEAL as to 18 Order on Motion for Summary Judgment, Order on Motion for Judgment on the Pleadings,,,,,,, by DEPARTMENT OF JUSTICE. Fee Status: No Fee Paid. Parties have been notified. (Nebeker, William) (Entered: 09/29/2009)
2009-09-30Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 21 Notice of Appeal (td, ) (Entered: 09/30/2009)
2009-10-0122STIPULATION by GEORGE LARDNER. (Zieve, Allison) (Entered: 10/01/2009)
2009-10-01USCA Case Number 09-5337 for 21 Notice of Appeal filed by DEPARTMENT OF JUSTICE. (td, ) (Entered: 10/02/2009)
2009-10-0123STIPULATION AND ORDER holding in abeyance the issues of fees and costs until 21 days after the resolution of the appeal. Signed by Judge Colleen Kollar-Kotelly on 10/1/09. (dot, ) (Entered: 10/02/2009)
2010-11-0124STIPULATION by DEPARTMENT OF JUSTICE, GEORGE LARDNER. (Nebeker, William) (Entered: 11/01/2010)
2010-11-0125STIPULATION AND ORDER: holding in abeyance the issues of fees and costs until 21 days after the judgment in this case in final for all purposes. Signed by Judge Colleen Kollar-Kotelly on 11/1/10. (dot, ) (Entered: 11/02/2010)
2010-12-2826MANDATE of USCA (certified copy) as to 21 Notice of Appeal filed by DEPARTMENT OF JUSTICE ; ORDERED AND ADJUDGED that the grant of summary judgment by the district court be affirmed. USCA Case Number 09-5337. (mmh) (Entered: 12/28/2010)
2011-02-0927STIPULATION by GEORGE LARDNER. (Zieve, Allison) (Entered: 02/09/2011)
2011-02-0928STIPULATION AND ORDER. Signed by Judge Colleen Kollar-Kotelly on 2/9/11. (dot, ) (Entered: 02/18/2011)
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