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Case TitleJUDICIAL WATCH, INC. v. U.S. DEPARTMENT OF JUSTICE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2016cv01888
Date Filed2016-09-21
Date Closed2017-10-25
JudgeJudge Rosemary M. Collyer
PlaintiffJUDICIAL WATCH, INC.
Case DescriptionJudicial Watch submitted a FOIA request to the FBI for records of interviews with Barack Obama, Rahm Emanuel, and Valerie Jarrett pertaining to contacts made by former Illinois Gov. Rod Blagojevich inquiring about potential job appointments. Blagojevich was later convicted of various criminal charges, but some of those charges were ordered retried on appeal. The Supreme Court rejected Blagojevich's petition for certiorari and prosecutors decided not to retry him on any charges. In response to Judicial Watch's request, the FBI denied its request, citing Exemption 7(A) (interference with ongoing investigation or proceeding). Judicial Watch appealed the denial, but the Office of Information Policy upheld the agency's decision. Judicial Watch then filed suit.
Complaint issues: Adequacy - Search, Litigation - Vaughn index, Litigation - Attorney's fees

DefendantU.S. DEPARTMENT OF JUSTICE
AppealD.C. Circuit 17-5283
AppealD.C. Circuit 19-5218
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [22]
FOIA Project Annotation: Judge Rosemary Collyer has ruled that three FD-302 forms prepared by the FBI during its investigation of corruption charges by former Illinois Governor Rod Blagojevich are protected by Exemption 7(A) (interference with ongoing investigation or proceeding) because Blagojevich's certiorari petition of his conviction to the Supreme Court is still pending. Judicial Watch requested any interviews the FBI conducted with Barack Obama, Rahm Emanuel, or Valerie Jarrett concerning Blagojevich. Although Collyer never described the contents of the FD-302s, certainly an inference exists that the FD-302s pertain to Obama, Emanuel, and Jarrett. The agency denied access to the FD-302s, citing Exemption 7(A) and Exemption 5 (privileges). Since Collyer found the FD-302s were entirely protected by Exemption 7(A), she did not analyze whether Exemption 5 applied as well. Judicial Watch argued that Blagojevich's cert petition to the Supreme Court was too attenuated to show that the case was still ongoing. Collyer disagreed. She noted that "the fact remains that (1) the FD-302s are records contained in a law enforcement investigative file that (2) is currently being directly appealed. That appeal may be very short-lived, but it is not the Court's role to guess how or when Rod Blagojevich's appeal may be resolved. Until that appeal is fully exhausted, disclosure of investigative materials could be reasonably expected to interfere with whatever occurs going forward. Rod Blagojevich has not exhausted his options for appeal before the courts, and, until that time at least, the government is entitled to preserve the strategies, theories, and impressions found in its investigative files." Collyer expressed concern that some of the investigative file could have entered the public domain during Blagojevich's trial. She pointed out that, here, that did not appear to be a concern, explaining that "had DOJ withheld its entire file, it may have been appropriate for it to detail which, if any, records had passed into the public domain as a result of the trial. However, in this instance, only three records are at issue, none of which is alleged to have been introduced as an exhibit, or otherwise passed into the public domain."
Issues: Exemption 7(A) - Interference with ongoing investigation
Opinion/Order [29]
FOIA Project Annotation: Judge Rosemary Collyer has ruled that the Department of Justice properly withheld FBI interviews with former President Barack Obama, former chief of staff Rahm Emanuel, and former presidential advisor Valerie Jarrett conducted during its investigation of former Illinois governor Rod Blagojevich's attempts at extortion in connection with naming a new U.S. senator to replace Obama after he was elected President under Exemption 5 (privileges). When Judicial Watch requested the three Form 302 reports prepared by the FBI as part of the Blagojevich investigation, the agency originally withheld them under Exemption 7(A) (interference with ongoing investigation or proceeding). The agency continued to claim Exemption 7(A) until Blagojevich decided not to appeal his conviction to the Supreme Court. After 7(A) no longer applied, the agency claimed the interview reports were protected by the attorney work-product privilege. Collyer pointed out that "the fact that Mr. Blagojevich had already been arrested on a criminal complaint on December 9, 2008 " the same month the relevant interviews were conducted " demonstrates that the DOJ was actively engaged in litigation against Mr. Blagojevich, not merely contemplating it. Without a doubt, the FBI interviewed the Obama administration officials and prepared the Forms 302 reflecting those interviews when litigation was in the offing." Judicial Watch argued that because FBI agents are required to prepare Form 302 reports to memorialize interviews these three interviews were created pursuant to the agency's administrative policy rather than because of pending litigation. However, Collyer observed that "the germane inquiry is whether the Form 302 would have been prepared by the FBI agents but for the impending prosecution of Mr. Blagojevich. Because the interviews occurred and the Forms 302 were drafted 'for the purpose of gathering evidence that could be presented to a grand jury and that could factor into the case,' the Forms 302 were prepared in anticipation of litigation." Judicial Watch also claimed that the reports were not protected by the attorney work-product privilege because they were not prepared by attorneys. Collyer rejected that claim as well, noting that "law enforcement agents operating in their independent investigatory capacities are not usually considered attorney agents whose notes are protected as attorney work product, but once they are acting in a supportive role to the attorney preparing the case for indictment or prosecution, the attorney work-product protection applies to their work product under FOIA Exemption 5." Assessing the issue of segregability, Collyer explained that "as the entire contents of the records at issue here constitute attorney work product, protected from disclosure by Exemption 5 in their entirety, there is no segregable information."
Issues: Exemption 5 - Privileges - Attorney work-product privilege compiled in anticipation of litigation
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2016-09-211COMPLAINT against U.S. DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-4681994) filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons U.S. Attorney, # 3 Summons U.S. Attorney General, # 4 Summons U.S. DOJ)(Orfanedes, Paul) (Entered: 09/21/2016)
2016-09-212NOTICE OF RELATED CASE by JUDICIAL WATCH, INC.. Case related to Case No. 16-0576. (Orfanedes, Paul) (Entered: 09/21/2016)
2016-09-213LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JUDICIAL WATCH, INC. (Orfanedes, Paul) (Entered: 09/21/2016)
2016-09-21Case Assigned to Judge Rosemary M. Collyer. (dr) (Entered: 09/21/2016)
2016-09-214SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Consent Forms)(dr) (Entered: 09/21/2016)
2016-09-295RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 9/27/2016. ( Answer due for ALL FEDERAL DEFENDANTS by 10/27/2016.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 09/27/2016., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF JUSTICE served on 9/27/2016 (Attachments: # 1 Declaration of C. Rotaru)(Orfanedes, Paul) (Entered: 09/29/2016)
2016-10-246NOTICE of Appearance by John Cuong Truong on behalf of U.S. DEPARTMENT OF JUSTICE (Truong, John) (Entered: 10/24/2016)
2016-10-257Unopposed MOTION for Extension of Time to Respond to Complaint by U.S. DEPARTMENT OF JUSTICE (Truong, John) (Entered: 10/25/2016)
2016-10-258Unopposed MOTION for Extension of Time to Respond to Complaint (Corrected) by U.S. DEPARTMENT OF JUSTICE (Truong, John) (Entered: 10/25/2016)
2016-10-26MINUTE ORDER granting 8 Motion for Extension of Time. The Defendant shall answer or otherwise respond to the Complaint on or before December 1, 2016. Signed by Judge Rosemary M. Collyer on 10/26/2016. (lcrmc1) (Entered: 10/26/2016)
2016-10-26Set/Reset Deadlines/Hearings: Answer or other response to Complaint due by 12/1/2016. (cdw) (Entered: 10/27/2016)
2016-12-019ANSWER to Complaint by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Baer, Michael) (Entered: 12/01/2016)
2016-12-0110NOTICE OF WITHDRAWAL OF APPEARANCE as to U.S. DEPARTMENT OF JUSTICE. Attorney John Cuong Truong terminated. (Truong, John) (Entered: 12/01/2016)
2016-12-02MINUTE ORDER directing parties to meet and confer and jointly file, no later than December 22, 2016, a proposed schedule for summary judgment briefing. Signed by Judge Rosemary M. Collyer on 12/2/2016. (lcrmc1) (Entered: 12/02/2016)
2016-12-02Set/Reset Deadlines/Hearings: Proposed Summary Judgment Briefing Schedule due by 12/22/2016. (cdw) (Entered: 12/05/2016)
2016-12-2211Joint STATUS REPORT (Proposed Schedule) by U.S. DEPARTMENT OF JUSTICE. (Baer, Michael) (Entered: 12/22/2016)
2017-01-1312Joint STATUS REPORT and Proposed Briefing Schedule by JUDICIAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Orfanedes, Paul) (Entered: 01/13/2017)
2017-01-17MINUTE ORDER granting proposed joint briefing schedule. Defendant's Motion for Summary Judgment shall be filed on or before April 13, 2017. Plaintiff's response shall be due on or before May 15, 2017. Defendant's reply shall be due on or before June 5, 2017. Any reply by Plaintiff, if necessary, shall be due June 19, 2017. Signed by Judge Rosemary M. Collyer on 1/17/2017. (lcrmc1) (Entered: 01/17/2017)
2017-01-17Set/Reset Deadlines/Hearings: Defendant's Summary Judgment motion due by 4/13/2017. Response to Motion for Summary Judgment due by 5/15/2017. Reply to Motion for Summary Judgment due by 6/5/2017. Plaintiff's reply due by 6/19/2017. (cdw) (Entered: 01/18/2017)
2017-04-1313MOTION for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Declaration of David M. Hardy, # 3 Declaration of Debra Riggs Bonamici, # 4 Statement of Facts, # 5 Text of Proposed Order)(Baer, Michael) (Entered: 04/13/2017)
2017-05-0914NOTICE of Appearance by Lauren M. Burke on behalf of JUDICIAL WATCH, INC. (Burke, Lauren) (Entered: 05/09/2017)
2017-05-1515Memorandum in opposition to re 13 MOTION for Summary Judgment filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Declaration of Michael J. Sharkey, # 2 Declaration of Thomas J. Fitton, # 3 Text of Proposed Order)(Burke, Lauren) (Entered: 05/15/2017)
2017-05-1516Cross MOTION for Summary Judgment by JUDICIAL WATCH, INC. (Attachments: # 1 Declaration of Michael J. Sharkey, # 2 Declaration of Thomas J. Fitton, # 3 Text of Proposed Order)(Burke, Lauren) (Entered: 05/15/2017)
2017-06-0517Memorandum in opposition to re 16 Cross MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration of David M. Hardy (second))(Baer, Michael) (Entered: 06/05/2017)
2017-06-0518REPLY to opposition to motion re 13 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration of David M. Hardy (second))(Baer, Michael) (Entered: 06/05/2017)
2017-06-1619MOTION for Extension of Time to File Response/Reply as to 16 Cross MOTION for Summary Judgment by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Burke, Lauren) (Entered: 06/16/2017)
2017-06-16MINUTE ORDER granting 19 Motion for Extension of Time to File Reply re 16 Motion for Summary Judgment. Plaintiff shall file its Reply no later than 6/23/2017. Signed by Judge Rosemary M. Collyer on 6/16/2017. (DAS) (Entered: 06/16/2017)
2017-06-2320MOTION for Extension of Time to File Response/Reply as to 16 Cross MOTION for Summary Judgment by one day by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Burke, Lauren) (Entered: 06/23/2017)
2017-06-23MINUTE ORDER granting 20 Motion for Extension of Time to File Response/Reply. Plaintiff shall file any reply as to 16 Cross Motion for Summary Judgment on or before June 26, 2017. Signed by Judge Rosemary M. Collyer on 6/23/2017. (lcrmc1) (Entered: 06/23/2017)
2017-06-2621REPLY to opposition to motion re 16 Cross MOTION for Summary Judgment filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Exhibit 1 - 7th Cir. denial, # 2 Exhibit 2 - Mandate, # 3 Exhibit 3 - Durham Declaration (N.Y. Times))(Burke, Lauren) (Entered: 06/26/2017)
2017-10-2022MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 10/20/2017. (lcrmc1) (Entered: 10/20/2017)
2017-10-2023ORDER granting Defendant's 13 Motion for Summary Judgment and denying Plaintiff's 16 Cross-Motion for Summary Judgment. Judgment is entered in favor of Defendant on all counts. This case is closed. Signed by Judge Rosemary M. Collyer on 10/20/2017. (lcrmc1) (Entered: 10/20/2017)
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by FOIA Project Staff
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