Tokar v. DOJ, No. 16-2410, 2018 WL 1542320 (D.D.C. Mar. 29, 2018) (Contreras, J.)

Tokar v. DOJ, No. 16-2410, 2018 WL 1542320 (D.D.C. Mar. 29, 2018) (Contreras, J.)

Re: Request for selection of corporate compliance monitors for fifteen corporations that had resolved their FCPA cases through deferred prosecution agreements

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting plaintiff's motion for summary judgment

• Procedural Requirements, Proper FOIA Requests:  "[T]he Court finds that [plaintiff's] narrowed request should have been interpreted as a request for documents, not simply information, given that his original request was a similarly worded request for both documents and information."  The court finds that "[t]his case . . . is not a simple case in which an individual requested information instead of documents because the request being interpreted is the narrowing of a previous request that had unequivocally requested documents and specified the types of information the requester wanted to see in those documents."  "The goal of this request was clear: [plaintiff] wanted all of the documents submitted by counsel at the outset of the selection process, and wanted to emphasize that he was especially interested in obtaining documents that indicated which individuals each company nominated to serve as monitors."  "[Plaintiff's] narrowed request asked for some of the exact same information he had asked for in his original request, but without the specification that the information be released in specific records."  The court finds that "taking both requests together, it can be reasonably inferred that [plaintiff] sought the same sort of documents in his narrowed request, and was simply informing DOJ that he no longer sought documents[.]"  Additionally, the court finds that "[defendant] had a duty to confer with [plaintiff] to clear up any confusion."
   
• Exemptions 6 & 7(C):  The court holds that "DOJ's redactions pursuant to Exemptions 6 and 7(C) were impermissible[.]"  The court relates that defendant withheld "'the names of monitor selection committee members who are not part of DOJ's senior management' and 'the names and related personal identifying information concerning the individuals nominated but not selected to be monitors.'"  "Because [plaintiff] has demonstrated that the release of even this small amount of information will serve the public interest, to an extent that outweighs the candidates for these lucrative positions' interest in keeping their identities secret, the Court finds the unselected candidates' names cannot be properly withheld pursuant to Exemption 6."  The court credits plaintiff's public interest argument that "'[w]ithout disclosure of the names of candidates who are nominated, but not ultimately selected, for corporate monitorship positions, it is difficult (if not impossible) to know whether either the government or the corporate entity under investigation is taking advantage of the selection process in a manner that undermines the objectives of the DPA.'"  The court also finds that, "[h]ere, because the type of stigma or harassment that traditionally triggers protection under Exemption 7(C) is not present, as evidenced by the fact that DOJ freely released the names of those candidates who were selected to be compliance monitors – i.e. the actual people who would be associated with investigating whether the fifteen companies were complying with their DPAs, the privacy interests are much weaker than in a traditional Exemption 7(C) case."
  
  Regarding, the withholding of "the names of the attorneys who drafted the fifteen companies' responses to the submitter notices, and . . . the names of two DOJ employees who received some of the responses[,]" the court finds that "[e]ven if, as DOJ claims, the public interest will not be served by [plaintiff's] receipt of these names, the fact that these attorneys have, at most, a de minimis privacy interest in keeping their names redacted, means that those names must be released."  The court focuses on the fact that most of these names are publically available.
   
• Exemption 4:  The court "affirms DOJ's decision to redact several paragraphs of text pursuant to Exemption 4."  "Although [plaintiff] has not challenged DOJ’s withholding pursuant to Exemption 4, the Court still has an independent duty to 'determine for itself whether the record and any undisputed material facts justify granting summary judgment,' because a Court may not grant summary judgment simply because the withholding was not challenged."  "[T]he Court finds that the information regarding . . . FCPA compliance that the company shared with DOJ when responding to the submitter notice was 'commercial' within the meaning of Exemption 4."  "DOJ also claims that the information is confidential because it was submitted to the agency voluntarily and is a type of information that is not usually released to the public."  "The Court has no reason to disbelieve this assertion."  "Because the agency has submitted an affidavit that reasonably describes how this information meets all of the requirements of Exemption 4, the Court finds that DOJ’s redaction of this information was permissible."