Notice & Comment

D.C. Circuit Review – Reviewed: Freedom of Information Edition

The big opinion this past week was Electronic Privacy Information Center v. U.S. Department of Justice, No. 20-5364 (D.C. Cir. Nov. 30, 2021), in which the Court considered Buzzfeed’s appeal of a decision permitting DOJ to redact portions of the Mueller report that relate to individuals who were investigated but not charged by the Special Counsel. The Court also issued two decisions at the end of last week, a sentencing appeal challenging an upward variance and a decision touching upon appellate jurisdiction/civil procedure and Federal Rule 60(b). Those are covered in brief at the end of this post.

Other than declining to treat campaign officials as government officials in terms of their privacy interests, which appears to have been an open question before now, the EPIC decision did not tread new FOIA ground, but reflects a painstaking application of Circuit FOIA law. Buzzfeed had requested an unredacted copy of the Mueller report. The DOJ invoked FOIA exemption 7(C) to justify some redactions related to individuals who were investigated but not charged. Exemption 7(C) permits the withholding of law enforcement records which, if disclosed, “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). The district court held that the public’s interest in disclosure did not outweigh the individuals’ privacy interests. The D.C. Circuit affirmed in part and reversed in part. Judge Henderson, joined by Judges Tatel and Edwards, agreed that passages could be redacted when they “contain[ed] personally identifying facts about individuals that are not disclosed elsewhere in the Report and would be highly stigmatizing to the individuals’ reputations.” The Court declined to permit redactions, however, of “passages that primarily show how the Special Counsel interpreted relevant law and applied it to already public facts available elsewhere in the Report in reaching individual declination decisions.” 

To get there, the Court carefully stepped through the Exemption 7(C) analysis. First, the Court reiterated Circuit law that individuals have a privacy interest “in keeping secret the fact that they were subjects of a law enforcement investigation.” Buzzfeed did not dispute this. Then, the Court analyzed whether those privacy interests were diminished in any way. Buzzfeed argued that they were, but the Court largely disagreed. First, Buzzfeed argued that high-profile members of the Trump campaign were akin to government officials, for whom the D.C. Circuit had recognized a “somewhat diminished privacy interest.” The Court disagreed. The Court agreed, however, that the privacy interest was not “robust” with respect to names and details that were already public, but based on in camera review, found that some of the redacted passages, specifically related to false-statement investigations contained new, non-public information for which the privacy interest remained strong. Balancing those privacy interests against the public interest in being able to evaluate how (or how well) “the Special Counsel carried out his duties to investigate and prosecute criminal conduct” tipped the scale in favor of disclosure where the underlying facts were largely already public, but privacy interests were paramount where the “material contains additional facts about individuals that are not disclosed elsewhere and that would be highly stigmatizing.”

In brief, the Court also decided:

  • United States v. Brevard, No. 20-3011 (D.C. Cir. Dec. 3, 2021): Affirmed the district court’s imposition of an above-guidelines sentence, even though the district court made a procedural error in treating certain D.C. Code offenses as “potential charge[s] not pursued in the case” under Guideline § 5K2.21 when those D.C. Code offenses could not have been properly joined with the federal charge.
  • Agudas Chasidei Chabad of U.S. v. Russian Federation, Nos. 20-7078, 20-7080 (D.C. Cir. Dec. 30, 2021): Chabad Chasidism is a religious movement that sued the Russia Federation and affiliates (Russian Appellants), seeking to recover materials taken from its religious community in the early twentieth century, but the D.C. Circuit’s decision has nothing to do with the underlying facts and everything to do with deadlines and procedure. Chabad served subpoenas seeking to identify certain assets after a default judgment and sanctions were entered against Russia. The Russian Appellants moved to quash the subpoenas but did not appeal the district court’s denials under 28 U.S.C. § 1291, though they could have because their motions to quash were based on sovereign-immunity defenses. The D.C. Circuit rejected their attempts to generate belated appeals through other avenues: In one case, the district court denied the request to certify its order for interlocutory appeal under § 1292, so the D.C. Circuit held it lacked appellate jurisdiction. In a second case, one of the Russian Appellants moved to vacate the default judgment under Rule 60(b). The district court denied the motion because that Appellant was nether a party to the judgment nor the legal representative of the party, and the D.C. Circuit affirmed. Moral of the story: file protective timely final-judgment appeals if you think there’s even a possibility the district court’s decision permits one.
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