Case Detail

FOIA Project Annotation: After winning two cases in which the Justice Department refused to confirm or deny the existence of records pertaining to members of Congress, CREW has been roundly rebuffed in its attempts to get FBI records concerning its investigation of former House Majority Leader Tom DeLay related to allegations of corruption. In the first two cases, CREW was successful in convincing district court judges that the public interest in learning more about publicly acknowledged investigations of Rep. Don Young and Rep. Jerry Lewis required the agency to at least search, process, and make exemption claims on its responsive records. But this time, rather than defend a Glomar response, the FBI apparently decided to process CREW's request and ultimately informed CREW that it was withholding all the records under Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records), as well as Exemption 2 (internal practices and procedures), Exemption 3 (other statutes), and other subparts of Exemption 7. Judge Richard Leon first noted that the parties agreed that the records were compiled for law enforcement purposes and that the broader privacy coverage of Exemption 7(C) was applicable. He then pointed out that "although Mr. DeLay's privacy interest is 'somewhat diminished' by virtue of his political stature, he did 'not surrender all rights to personal privacy when [he] accept[ed] a public appointment.'" CREW argued DeLay's privacy was further diminished by the fact that he and his attorney had publicly acknowledged that he was the subject of a DOJ investigation and that the agency had admitted that it had records that were created as part of its public corruption investigation. But Leon responded that merely acknowledging the existence of the investigation did not constitute a waiver of DeLay's privacy interests. He observed that "Mr. DeLay still maintains a substantial privacy interest in the substance of the investigation. . .Mr. DeLay's public statement relied on by plaintiff discloses only that an investigation was conducted by the DOJ and has since concluded without charges. Mr. DeLay never disclosed the nature of the investigation." Leon added that "the FBI's concession that it possesses responsive records does not waive Mr. DeLay's privacy interests. . .Mr. DeLay maintains a privacy interest in the content of those responsive records, not just in the disclosure of their existence." After finding DeLay had a privacy interest in the records, Leon pointed out that CREW had the burden of showing the existence of a public interest in their disclosure. CREW argued disclosure would shed light on DOJ's performance of its statutory duties and that there was a substantial public interest in overseeing the agency's enforcement of ethics and anti-corruption law governing public officials. But, Leon, characterizing the majority of the records as FD-302s and FD-302 inserts containing factual or identifying information supplied largely by third parties, indicated that "while the Court acknowledges that there may be some public interest in the investigative materials and reports, which describe how evidence was obtained and are used to update other agencies on the investigation's progress, this minimal public interest does not outweigh the substantial privacy interests of Mr. DeLay and other third parties in the contents of the documents." In a footnote, Leon discussed, and rejected, CREW's claim that the agency's grant of expedited processing lent support to its public interest argument. He noted that "plaintiff's argument, however, that DOJ admitted the presence of a public interest by granting expedited processing of plaintiff's request is misguided. Plaintiff sought expedited processing of plaintiff's request, which was granted. . .on grounds that the information sought pertained to a matter of 'widespread and exceptional media interest. . .in which there exist possible questions about the government's integrity which affect public confidence.' This standard for expedited processing is quite distinct from the Exemptions' public interest analysis." CREW also suggested its fee waiver request supported its public interest claim, but Leon pointed out that the agency had deferred a decision on the fee waiver request until it determined if any records would actually be disclosed. Peculiarly, Leon then embraced Exemption 7(A) (interference with ongoing investigation or proceedings) as another reason to withhold the records entirely. Even though the DeLay investigation had been concluded without any charges, Leon relied on the FBI's claim that there was a "continuing large public corruption investigation" to conclude that "not only is the investigation still ongoing, but 'there are several outstanding convictions and sentencing proceedings. . .which have not yet been completed." He pointed out that disclosure could result in intimidation of potential witnesses, identify parties currently under investigation, and reveal the government's trial strategy. He also agreed that some information was protected by Exemption 7(D (confidential sources). The agency argued that confidential sources needed protection because the information provided "by these individuals and organizations is singular in nature and if released, could reveal the informant's identity." Leon indicated that "considering these factors, the continuing nature of the investigation, the ongoing relationship between the FBI and the sources, and the potential 'chilling effect' of disclosure on current and future sources, I find that the information was furnished on a confidential basis and is, therefore, exempt from disclosure." Leon found that other information was protected by Exemption 7(E) (investigative methods and techniques). He pointed out that "the FBI properly applied this exemption to protect law enforcement techniques and procedures used by FBI Special Agents during the investigation, which, if disclosed could cause circumvention of the FBI's ability to adequately enforce the law."
Issues: Exemption 7(C) - Invasion of privacy concerning law enforcement records, Determination - Glomar response

FOIA Project Annotation: Judge Richard Leon has ruled that although the Justice Department failed to claim Exemption 5 (privileges) when the case was first before him, because the parties agreed that certain memos concerning the agency's decision not to prosecute former House Majority Leader Tom DeLay (R-TX) qualified as privileged, waiving the exemption claim would not serve the underlying policy restricting agencies from subsequently claiming exemptions not claimed originally. The case involved CREW's suit for records concerning the agency's decision not to prosecute DeLay. Leon had originally approved the agency's use of a Glomar response neither confirming nor denying the existence of records. That decision was reversed by the D.C. Circuit, which remanded the case back to the agency for processing and then for Leon to determine the applicability of any exemption claims. CREW protested that DOJ had waived its ability to claim Exemption 5 because it had not done so the first time the case was before Leon. Leon found that the Criminal Division had indicated that it was relying on Exemption 5, but pointed out that "nowhere did defendant claim the FBI had also properly withheld records pursuant to Exemption 5, nor could it, as the FBI did not attempt to justify non-disclosure of any of its responsive records by asserting Exemption 5." As a result, Leon observed, "because it was not even hinted at in the first round of summary judgment, the issue of whether Exemption 5 is applicable to the FBI's material was not one plaintiff had the chance to contest or this Court had the opportunity to consider and therefore was not asserted in the original court proceedings." The FBI argued that forbidding it to invoke Exemption 5 under these circumstances would not serve the underlying policy of promoting judicial economy by addressing all the issues from the beginning, and prohibiting agencies from changing their exemption claims as the litigation progressed. Leon noted that "in general, permitting a defendant to raise a new claim of exemption for the first time at this late stage could result in dragging a plaintiff back to the starting line. But that is not the case here. Plaintiff does not dispute that Exemption 5 shields the material at issue from disclosure and therefore there is no occasion for delaying the process with presentation and consideration of fresh arguments about the applicability of the exemption." He added that "defendant's behavior is not consistent with gamesmanship. Defendant never withheld its general argument that the DOJ attorneys' 'distillation of facts, legal analyses, opinions, and recommendations about whether to prosecute certain individuals' falls within Exemption 5. That defendant now seeks to withhold similar material for the same reasons does not appear to be intentional sandbagging. . ." Leon found CREW had not shown that the identities of third parties linked to the investigation had been publicly disclosed to such an extent that their identities could not be redacted under either Exemption 6 (invasion of privacy) or Exemption 7(C) (invasion of privacy concerning law enforcement records). He indicated that "plaintiff does not point to any information in the public domain confirming the individuals whose names are redacted have been publicly associated specifically with the investigation into Mr. DeLay or into the precise conduct or events discussed on the pages with redacted names and identifying information." He then rejected CREW's contention that disclosure was in the public interest. He pointed that "while releasing the withheld names would provide more information about Mr. DeLay's conduct and associations, it is unclear from plaintiff's argument how doing so would serve the public interest in shedding light on how the Department conducted the investigation, the level of diligence and resources it put forth, and the amount of evidence it surmounted."
Issues: Exemption 5 - Privileges - Waiver of privilege, Exemption 7(C) - Invasion of privacy concerning law enforcement records

Date Filed	Doc #	Docket Text
2011-03-22	1	COMPLAINT against U.S. DEPARTMENT OF JUSTICE ( Filing fee $ 350, receipt number 4616037367) filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Civil Cover Sheet)(dr) (Entered: 03/23/2011)
2011-03-22		SUMMONS (3) Issued as to U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (dr) (Entered: 03/23/2011)
2011-03-22	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON identifying Corporate Parent NONE for CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (dr) (Entered: 03/23/2011)
2011-04-01	3	STANDING ORDER. Signed by Judge Richard J. Leon on 4/1/11. (lcrjl2) (Entered: 04/01/2011)
2011-04-22	4	ANSWER to 1 Complaint by U.S. DEPARTMENT OF JUSTICE.(Bloom, Karen) (Entered: 04/22/2011)
2011-04-28	5	NOTICE of Appearance by Anne L. Weismann on behalf of CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Weismann, Anne) (Entered: 04/28/2011)
2011-06-06	6	MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order)(Bloom, Karen) (Entered: 06/06/2011)
2011-06-10		Set/Reset Deadlines: Defendant's Dispositive Motions due by 8/8/2011. Response to Dispositive Motions due by 9/7/2011. Defendant's Reply and Opposition due by 9/27/2011. Plaintiff's reply due by 10/12/2011. (kc) (Entered: 06/10/2011)
2011-08-05	7	Unopposed MOTION for Order Modifying the Briefing Schedule by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Bloom, Karen) (Entered: 08/05/2011)
2011-08-22		MINUTE ORDER granting 7 Unopposed Motion to Modify Briefing Schedule. It is hereby ORDERED that the motion is GRANTED. Signed by Judge Richard J. Leon on 8/22/11. (lcrjl2) (Entered: 08/22/2011)
2011-08-23	8	Unopposed MOTION for Extension of Time to File Motion by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Bloom, Karen) (Entered: 08/23/2011)
2011-08-25	9	MOTION for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum, # 2 Statement of Facts, # 3 Declaration, # 4 Exhibit, # 5 Exhibit, # 6 Declaration, # 7 Exhibit, # 8 Text of Proposed Order)(Bloom, Karen) (Entered: 08/25/2011)
2011-08-25		MINUTe ORDER granting nunc pro tunc 8 Motion for Extension of Time to File. Signed by Judge Richard J. Leon on 8/25/11. (lcrjl2) (Entered: 08/25/2011)
2011-08-30	10	NOTICE by U.S. DEPARTMENT OF JUSTICE re 9 MOTION for Summary Judgment (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts)(Bloom, Karen) (Entered: 08/30/2011)
2011-09-22	11	Memorandum in opposition to re 9 MOTION for Summary Judgment filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Statement of Facts, # 2 Exhibit A - H, # 3 Exhibit I, # 4 Exhibit J, # 5 Text of Proposed Order)(Sobel, David) (Entered: 09/22/2011)
2011-09-22	12	Cross MOTION for Partial Summary Judgment by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Attachments: # 1 Statement of Facts, # 2 Exhibit A - H, # 3 Exhibit I, # 4 Exhibit J, # 5 Text of Proposed Order)(Sobel, David) (Entered: 09/22/2011)
2011-09-23	13	NOTICE of Filing by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON re 11 Memorandum in Opposition, 12 Cross MOTION for Partial Summary Judgment (Attachments: # 1 Declaration of David J. Merchant)(Sobel, David) (Entered: 09/23/2011)
2011-10-12	14	REPLY to opposition to motion re 9 MOTION for Summary Judgment, 12 Cross MOTION for Partial Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Statement of Facts Response to Plaintiff's Statement of Material Facts)(Bloom, Karen) (Entered: 10/12/2011)
2011-10-12	15	Memorandum in opposition to re 12 Cross MOTION for Partial Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (See Docket Entry 14 to view document. Counsel is reminded to file the reply and opposition as two separate docket entries in future). (znmw, ) (Entered: 10/13/2011)
2011-10-27	16	REPLY to opposition to motion re 12 Cross MOTION for Partial Summary Judgment filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Sobel, David) (Entered: 10/27/2011)
2011-11-18	17	NOTICE OF SUPPLEMENTAL AUTHORITY by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Exhibit Graff v. FBI Opinion)(Bloom, Karen) (Entered: 11/18/2011)
2011-11-22	18	RESPONSE re 17 NOTICE OF SUPPLEMENTAL AUTHORITY filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Sobel, David) (Entered: 11/22/2011)
2012-01-10	19	NOTICE OF SUPPLEMENTAL AUTHORITY by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Sobel, David) (Entered: 01/10/2012)
2012-03-06	20	NOTICE OF SUPPLEMENTAL AUTHORITY by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Sobel, David) (Entered: 03/06/2012)
2012-06-12	21	MEMORANDUM OPINION. Signed by Judge Richard J. Leon on 6/8/2012. (kc ) (Entered: 06/12/2012)
2012-06-12	22	MEMORANDUM ORDER For the reasons set forth in the Memorandum Opinion entered this 8th day of June 2012, it is hereby ORDERED that defendant's Motion for Summary Judgment 9 is GRANTED; and it is further ORDERED that plaintiff's Cross-Motion for Partial Summary Judgment 12 is DENIED; and it is further ORDERED that final judgment be entered for the defendant on all counts in the Complaint. SO ORDERED. Signed by Judge Richard J. Leon on 6/8/2012. (see order) (kc ) (Entered: 06/12/2012)
2012-07-20	23	NOTICE OF APPEAL TO DC CIRCUIT COURT as to 21 Memorandum & Opinion, 22 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment,, by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. Filing fee $ 455, receipt number 0090-3010580. Fee Status: Fee Paid. Parties have been notified. (Weismann, Anne) (Entered: 07/20/2012)
2012-07-23	24	Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 23 Notice of Appeal to DC Circuit Court,. (znmw, ) (Entered: 07/23/2012)
2012-07-30		USCA Case Number 12-5223 for 23 Notice of Appeal to DC Circuit Court, filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (jf, ) (Entered: 07/30/2012)
2014-05-28	25	MANDATE of USCA (certified copy) as to 23 Notice of Appeal to DC Circuit Court, filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON ; ORDERED and ADJUDGED that the summary judgment of the District Court appealed from in this cause is hereby reversed and the case is remanded for further proceedings, in accordance with the opinion filed herein this date. USCA Case Number 12-5223. (Attachments: # 1 USCA Opinion) (md, ) (Entered: 05/30/2014)
2015-01-09		Set/Reset Hearings: Status Conference set for 1/23/2015 03:00 PM in Courtroom 18 before Judge Richard J. Leon. (tb, ) (Entered: 01/09/2015)
2015-01-23		Minute Entry: Status Conference held on 1/23/2015 before Judge Richard J. Leon: Parties to file Joint Proposed Scheduling Brief. (Court Reporter Bill Zaremba) (tb, ) (Entered: 01/26/2015)
2015-02-11	26	NOTICE of Change of Address by Anne L. Weismann (Weismann, Anne) (Entered: 02/11/2015)
2015-02-13	27	MEET AND CONFER STATEMENT. (Bloom, Karen) (Entered: 02/13/2015)
2015-02-16		MINUTE SCHEDULING ORDER: It is hereby ORDERED that the proposed briefing schedule submitted in conjunction with 27 the parties' Joint Proposed Scheduling Statement is APPROVED. If the parties are unable to resolve this matter without further briefing, the following schedule will govern dispositive motions in the above-captioned case: (1) Defendant shall file its motion by March 26, 2015; (2) Plaintiff shall file its opposition to Defendant's motion and any cross-motion by April 28, 2015; (3) Defendant shall file its reply in support of its motion and any opposition to plaintiff's motion by May 28, 2015; and (4) Plaintiff shall file any reply in support of its motion by June 12, 2015. Signed by Judge Richard J. Leon on 2/16/2015. (lcrjl2, ) (Entered: 02/16/2015)
2015-02-18		Set/Reset Deadlines: Motions due by 3/26/2015. Cross Motion due by 4/28/2015. Response to Cross Motions due by 5/28/2015. Reply to Cross Motion due by 6/12/2015. Response due by 4/28/2015. Reply due by 5/28/2015. (tb, ) (Entered: 02/18/2015)
2015-03-24	28	Unopposed MOTION to Modify Briefing Schedule by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Bloom, Karen) (Entered: 03/24/2015)
2015-03-26		MINUTE ORDER granting 28 Motion to Modify. It is hereby ORDERED that with respect to the parties' dispositive motions, if the parties are unable to resolve this matter without further briefing, Defendant shall file its motion by April 2, 2015; Plaintiff shall file its opposition to Defendant's motion and any cross-motion by May 5, 2015; Defendant shall file its reply in support of its motion and any opposition to Plaintiff's motion by June 4, 2015; and Plaintiff shall file any reply in support of its motion by June 19, 2015. Signed by Judge Richard J. Leon on 3/26/2015. (lcrjl2, ) (Entered: 03/26/2015)
2015-03-27		Set/Reset Deadlines: Cross Motions due by 5/5/2015. Response to Cross Motions due by 6/4/2015. Reply to Cross Motions due by 6/19/2015. Dispositive Motions due by 4/2/2015. Response to Dispositive Motions due by 5/5/2015. Reply to Dispositive Motions due by 6/4/2015. (tb, ) (Entered: 03/27/2015)
2015-04-02	29	Second MOTION for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration, # 4 Text of Proposed Order)(Bloom, Karen) (Entered: 04/02/2015)
2015-04-30	30	NOTICE OF SUBSTITUTION OF COUNSEL by Adam J. Rappaport on behalf of CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON Substituting for attorney Anne L. Weismann (Rappaport, Adam) (Entered: 04/30/2015)
2015-05-05	31	Memorandum in opposition to re 29 Second MOTION for Summary Judgment filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Sobel, David) (Entered: 05/05/2015)
2015-05-05	32	Cross MOTION for Partial Summary Judgment by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Sobel, David) (Entered: 05/05/2015)
2015-06-04	33	REPLY to opposition to motion re 29 Second MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Response to Plaintiff's Statement of Facts)(Bloom, Karen) (Entered: 06/04/2015)
2015-06-04	34	Memorandum in opposition to re 32 Cross MOTION for Partial Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Response to Plaintiff's Statement of Facts)(Bloom, Karen) (Entered: 06/04/2015)
2015-06-19	35	REPLY to opposition to motion re 32 Cross MOTION for Partial Summary Judgment filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Exhibit A)(Sobel, David) (Entered: 06/19/2015)
2016-03-30	36	MEMORANDUM OPINION. Signed by Judge Richard J. Leon on 03/30/2016. (jth) (Entered: 03/30/2016)
2016-03-30	37	ORDER for the reasons set forth in the Memorandum Opinion accompanying this Order, it is ORDERED that defendant's 29 Motion for Summary Judgment is GRANTED; and it is further ORDERED that plaintiff's 32 Cross-Motion for Partial Summary Judgment is DENIED; and it is further ORDERED that judgment shall be entered for defendant. SO ORDERED. Signed by Judge Richard J. Leon on 03/30/2016. (jth) (Entered: 03/30/2016)
2016-05-26	38	NOTICE OF APPEAL TO DC CIRCUIT COURT as to 36 Memorandum & Opinion, 37 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment,, by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. Filing fee $ 505, receipt number 0090-4544935. Fee Status: Fee Paid. Parties have been notified. (Sobel, David) (Entered: 05/26/2016)
2016-05-27	39	Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 38 Notice of Appeal to DC Circuit Court. (znmw) (Entered: 05/27/2016)
2016-05-31		USCA Case Number 16-5138 for 38 Notice of Appeal to DC Circuit Court, filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (zrdj) (Entered: 06/01/2016)
2017-06-14	40	MANDATE of USCA as to 38 Notice of Appeal to DC Circuit Court, filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON ; USCA Case Number 16-5138. (Attachments: # 1 USCA Order)(td) (Entered: 06/16/2017)
2017-08-08	41	NOTICE of Appearance by Anne L. Weismann on behalf of CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Weismann, Anne) (Entered: 08/08/2017)
2018-08-08	42	STIPULATION of Dismissal by U.S. DEPARTMENT OF JUSTICE. (Bloom, Karen) (Entered: 08/08/2018)
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