FOIA Litigation in the Shadow of the Mueller Investigation

MFIA client and reporter Ken Vogel of the New York Times submitted a FOIA request in August of 2017 to the Foreign Agents Registration Act (FARA) Unit of the Department of Justice. The request was for correspondence related to several entities and individuals that press reports at the time suggested may have violated FARA, which requires reporting to DOJ when an agent of a foreign principal lobbies domestically. Specifically, the FOIA request sought FARA Unit correspondence related to Paul Manafort and associates’ lobbying activities on behalf of Ukraine, Michael Flynn and associates’ lobbying activities on behalf of Turkey, and potential lobbying by others on behalf of Russia.

These activities were also relevant to Special Counsel Robert Mueller’s investigation, which completed last month. Mueller’s team ultimately indicted and procured guilty pleas from both Flynn and Manafort — though all of these developments occurred after the FOIA request had been submitted.

When no documents were produced six months following the request, the clinic filed a complaint in April 2018 in the Southern District of New York on behalf of Mr. Vogel and the New York Times. Since then, the government has provided just 26 pages of documents, which confirmed that the FARA Unit was investigating Paul Manafort, his associate Richard Gates, the Podesta Group and Mercury Public Affairs — both firms that Mr. Manafort hired — as well as Michael Flynn.

As part of its final FOIA response in September 2018, the government produced a six-line Vaughn index describing the contents of more than 1,500 emails and thousands of documents it sought to withhold in full. The government relied on FOIA Exemption 7(A), which allows withholding of “records or information compiled for law enforcement purposes, but only to the extent that production of such law enforcement records or information . . . could reasonably be expected to interfere with enforcement proceedings.”

When the government filed its motion for summary judgement in November 2018, the Mueller investigation had already proceeded substantially and had indicted and obtained guilty pleas from Manafort, Flynn, and Gates. As the parties exchanged summary judgement briefs, further developments occurred: the law firm Skadden Aarps, who had worked with Manafort, settled with the DOJ’s National Security Division over FARA violations and two Flynn associates were indicted for FARA violations in the Eastern District of Virginia. All of these developments bore directly on our client’s FOIA request — and the substantial amount of information accompanying them undermined the government’s claims of interference with investigations if any documents were released.

There is very little case law on how the government is legally required to respond to new developments in the investigations it seeks to protect under Exemption 7(A). This is likely because few FOIA cases proceed as this case has: it is unusual for a set of investigations to be widely publicly known before the government discloses their existence; it is unusual for a reporter to make a detailed FOIA request based on a pressing public interest so early in the investigatory process; and it is unusual for a set of investigations to proceed in such a staggered and piecemeal fashion. This case — pending in the shadow of a highly unusual investigation, the Mueller probe — displays all three attributes.

There are, however, a handful of relevant cases. A 2014 D.C. Circuit case about the investigation of former lobbyist Jack Abramoff and his associates made clear that Exemption 7(A) is “temporal in nature” and that the closing of the relevant investigations during the pendency of the appeal foreclosed continued withholding. Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Justice, 746 F.3d 1082, 1097 (D.C. Cir. 2014). In a 2015 federal district court case, the FBI changed its stance on withholding documents related to an investigation of Congressman John Murtha and associates after that investigation was closed — and the court blessed this decision. Citizens for Responsibility & Ethics in Washington v. United States Dep't of Justice, 83 F. Supp. 3d 297, 304 (D.D.C. 2015). And in the Second Circuit, two cases litigated by the general counsel of the New York Times, David McCraw, have made clear in the Exemption 1 and 3 Glomar context that new developments should not prompt a court to “bury its head in the sand.” Florez v. CIA, 829 F.3d 178, 188 (2d Cir. 2016); see also NYT v. DOJ, 756 F.3d 100, 111 (2d Cir. 2014). These cases also stress the temporal nature of FOIA but are not specifically about Exemption 7(A).

The clinic cited these cases in front of Magistrate Judge Stewart Aaron in oral argument on April 3, 2019, arguing that the government must consider the relevant developments to date when assessing the propriety of the withholdings under Exemption 7(A). The government did not strongly contest the relevance of the caselaw. The judge indicated in an order that the “Government shall re-review the documents set forth in Categories 1-3, 4 and 6 of the Vaughn Index . . . in light of relevant developments to date and produce any additional documents, or portions thereof, that it no longer contends are subject to Exemption 7(A).” The government completed its re-review and consented to the release of documents  that had since become public—it did not, however, alter its conclusion that Exemption 7(A) applies to the rest of the withheld documents.  This conclusion — which the court will now review — reveals a wringle in public-facing FOIA litigation: where FOIA is meant to make information public, this case shows that sometimes, only public information is FOIA-able.