Tokar v. U.S. Department of Justice

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DYLAN TOKAR, : : Plaintiff, : Civil Action No.: 16-2410 (RC) : v. : Re Document No.: 9, 10 : U.S. DEPARTMENT OF JUSTICE, : : Defendant. : MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION This case arises from two Freedom of Information Act (“FOIA”) requests to the Criminal Division of the U.S. Department of Justice (“DOJ”). Dylan Tokar, a reporter for the publication Just Anti-Corruption, which covers investigations and prosecutions under the Foreign Corrupt Practices Act (“FCPA”), sought records regarding the selection of corporate compliance monitors for fifteen corporations that had resolved their FCPA cases through deferred prosecution agreements (“DPA”). Following discussions with a DOJ attorney, during which Mr. Tokar was warned that DOJ would likely attempt to withhold documents responsive to his first FOIA requests under several FOIA exemptions, Mr. Tokar narrowed his request in an attempt to speed up the production process. Four months after Mr. Tokar narrowed his request, DOJ informed Mr. Tokar that, pursuant to 28 C.F.R. § 16.8(f), DOJ would need to send notifications to the fifteen corporations identified in his FOIA request in order to give them an opportunity to object to DOJ’s proposed disclosures. Following the dispatch of these “submitter notification” letters, Mr. Tokar submitted a second FOIA request seeking the disclosure of any objection letters the fifteen corporations submitted in response to the notifications. After months without a production in response to either FOIA request, Mr. Tokar filed this suit. DOJ’s ultimate responses to Mr. Tokar’s FOIA requests—a table with the information he sought through his first request, and copies of the letters he sought through his second—contained multiple redactions. DOJ moved for summary judgment following these releases, and Mr. Tokar cross-moved for summary judgment, challenging the majority of DOJ’s redactions. For the reasons set forth below, the Court finds that each of DOJ’s redactions under Exemptions 6 and 7(C) were improper, but that its redaction pursuant to Exemption 4, which Mr. Tokar did not challenge, was permissible. II. FACTUAL AND PROCEDURAL BACKGROUND Journalist Dylan Tokar, of the trade publication Just Anti-Corruption, has filed two FOIA requests seeking records and information related to DOJ’s selection process for corporate compliance monitors in FCPA cases. Corporate compliance monitors are hired at the expense of a company under DOJ scrutiny and are typically responsible for “(1) investigating the extent of wrongdoing already detected and reported to the government; (2) discovering the cause of the corporation’s compliance failure; and (3) analyzing the corporation’s business needs against the appropriate legal and regulatory requirements.” Veronica Root, The Monitor-“Client” Relationship, 100 Va. L. Rev. 523, 531 (2014). Following public controversy regarding the selection of monitors, DOJ launched an inquiry into its monitor selection process and issued the “Morford Memorandum,” which formally established principles for monitor selection. See Pl.’s Mem. L. Opp’n Def.’s Mot. Summ. J. & Supp. Pl.’s Cross-Mot. Summ. J. (“Pl.’s Mem.”) at ...

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