Cause of Action Inst. v. U.S. Dep't of Justice

282 F. Supp. 3d 66
CourtCourt of Appeals for the D.C. Circuit
DecidedOctober 10, 2017
DocketCivil Action No. 16–2226 (RBW)
StatusPublished
Cited by6 cases

This text of 282 F. Supp. 3d 66 (Cause of Action Inst. v. U.S. Dep't of Justice) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cause of Action Inst. v. U.S. Dep't of Justice, 282 F. Supp. 3d 66 (D.C. Cir. 2017).

Opinion

REGGIE B. WALTON, United States District Judge

The plaintiff, Cause of Action Institute (the "Institute"), brings this civil action against the defendant, the United States Department of Justice (the "Department"), alleging that the Department violated the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2012), by improperly withholding records responsive to its FOIA request. See Complaint ("Compl.") ¶ 1. Currently pending before the Court are the Department of Justice's Motion for Summary Judgment ("Def.'s Mot."), ECF No. 12, the Cause of Action Institute's Response to Department of Justice's Motion for Summary Judg[ ]ment and Cross-Motion for Summary Judgment ("Pl.'s Summ. J. Mot."), ECF No. 13, and the Cause of Action Institute's Motion for Leave to Amend Its Complaint ("Pl.'s Mot."), ECF No. 19. Upon careful consideration of the parties' submissions,1 the Court concludes for the reasons set forth below that it must deny the Institute's motion to amend its Complaint, grant the Department's motion for summary judgment, and deny the Institute's cross-motion for summary judgment.

I. BACKGROUND

On July 15, 2016, the Institute sent a FOIA request by letter to the Department's Tax Division (the "Division"), "seeking production of two specific records relating to the detailing of [Department] attorneys to the White House." Compl. ¶ 6. First, the Institute sought "an email chain involving two government employees (the 'Bringer-Wolfinger email chain') ... [that *70was submitted in] May 2014." Id. ¶ 9. Second, the Institute sought "a November 2011 report entitled the Current Practices for Attorney Assignments, Transfers, and Details" to the White House. Pl.'s Facts ¶ 4; Def.'s Facts ¶¶ 3-4. The Division had previously produced these two specific records "in response to another ... FOIA request" made by the Institute. Pl.'s Facts ¶ 2. However, the Division "had withheld large portions of those records by applying 'NR' or 'Non-Responsive' labels to the redactions." Id.; see also Compl. ¶ 7. Thus, in its July 15, 2016 FOIA request, the Institute sought the two requested records in their entirety, without any non-responsive redactions. See Compl. ¶ 8.

"By letter [ ] dated August 9, 2016, [the Division] acknowledged receipt of the [Institute's] July 15, 2016 FOIA request ... and requested a conference to clarify the scope of the request." Id. ¶ 11. On August 15, 2016, the parties "held a [tele]phone conference," during which the Institute explained that the use of "non-responsive" as a label to redact information was an improper "withholding tool" and clarified that it sought only the two records in their entirety. Id. ¶ 12; see also Def.'s Facts ¶¶ 2-6. On September 20, 2016, the Division issued its final decision regarding the Institute's July 15, 2016 FOIA request as clarified, producing in its entirety the November 2011 report, without any redactions. See Def.'s Facts ¶ 7; Pl.'s Facts ¶ 7.2 However, the Division subdivided the Bringer-Wolfinger email chain into nine separate records and redacted "Record 7" on the basis of Exemptions 3 and 5 of the FOIA and the remaining records as non-responsive. Pl.'s Facts ¶ 8; Compl. ¶ 17.

The Institute initiated this action by filing its Complaint on November 8, 2016, see Compl. at 1, alleging that the Department "improperly segmented the Bringer-Wolfinger email chain into nine distinct 'records' and improperly applied a 'non-responsive' designation to withhold eight of those 'records,' " id. ¶ 30.3 Thereafter, on January 12, 2017, the Department updated its policy regarding what constitutes a "record" under the FOIA, in which it urged agencies to "use the definition of [the term] record found in the Privacy Act," meaning that "each 'item, collection, or grouping of information' on the topic of the request can be considered a distinct 'record.' " Pl.'s Mot. to Amend, Exhibit ("Ex.") J (OIP Guidance: Defining a "Record" Under the FOIA (the "Guidance")) at 3. Later, on January 18, 2017, the Division re-processed the Bringer-Wolfinger email chain and re-produced the record to the Institute "as a single record," withdrawing all of the "non-responsive" redactions, but "redact[ing] significant portions of responsive material" pursuant to FOIA exemptions 3, 5, 6, 7(A), and 7(C). Pl.'s Facts ¶ 11; see also Def.'s Facts ¶¶ 9-11.

The Department now moves for summary judgment, asserting that its redactions of the re-processed and re-produced Bringer-Wolfinger email chain were proper, as those contents were exempt from disclosure under several FOIA exemptions. See Def.'s Mot. at 3. And, given that the Department re-produced the Bringer-Wolfinger email chain as one record, and *71because the Department asserts that withholding portions of the Bringer-Wolfinger email chain is proper pursuant to specific FOIA exemptions and not because they are "non-responsive," the Department contends that the issue of "whether the email chain constitutes one record or several records" is now "moot." Def.'s Mot. at 15. On February 8, 2017, the Institute simultaneously opposed the Department's motion and cross-moved for summary judgment, see Pl.'s Summ. J. Mot. at 1, arguing that "its claim against the [Department] for using 'non-responsive' as a redaction tool and improperly segmenting one record into multiple records is not moot," id. at 18. The Institute, however, did not oppose the Department's motion "as to its application of exemptions and redactions in the January 18, 2017 production" of the re-processed Bringer-Wolfinger email chain. Id. at 8. In response, the Department maintains its position that this case is now moot, see

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282 F. Supp. 3d 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cause-of-action-inst-v-us-dept-of-justice-cadc-2017.