Records on Congressman Young May Come to Light

     (CN) – The government has not adequately justified why it withheld certain papers concerning bribery allegations against a longtime congressman, a federal judge ruled.
     Citizens for Responsibility and Ethics in Washington, or CREW, submitted identical requests under the Freedom of Information Act in 2011 to the Justice Department’s criminal division, the FBI and the U.S. Attorney’s Office.
     The group sought records on investigations into the allegations against Rep. Don Young, R-Alaska, “including but not limited to DOJ’s decision not to bring criminal charges against him.”
     Young earmarked $10 million to study a highway interchange in southwest Florida, known as Coconut Road, in 2006
     The transportation bill allegedly stood to benefit one of his campaign donors, a family friend whose real estate company owned property nearby. And, a corruption investigation followed.
     Young was never prosecuted, however, and the Lee County Metropolitan Planning Organization returned the funds.
     CREW filed suit after exhausting its options to get the sought-after documents administratively from the agencies, which cited FOIA exemptions 6 and 7(C) in their denials, as well as Sections 552(b)(6) and (7)(C) of Title 5.
     In 2012, the U.S. District Court for the District of Columbia granted CREW partial summary judgment, holding the Justice Department could not categorically deny CREW’s requests under Exemptions 6 and 7(C).
     Eventually, the government released hundreds of partially redacted pages on Young. In justifying certain exemptions from those documents, it claimed FOIA Exemption 3, 5, 6, 7(A) and 7(C). Meanwhile, motions, oppositions and cross-motions for summary judgment between the parties continued.
     The latest ruling, levied Wednesday in D.C., addressed CREW’s claims that the criminal division and attorney’s office improperly withheld information under Exemptions 5, 6 and 7(C).
     CREW, on Exemption 5, challenged the withholding and redaction of documents based on the attorney work product doctrine and deliberative process privilege.
     U.S. District Judge Gladys Kessler was unmoved.
     “CREW fails to identify any specific document that it has reason to believe was wrongfully withheld as attorney work product,” Kessler wrote. “Rather, it asserts that the ‘D.C. Circuit has long required agencies to justify invocation of the attorney work product doctrine through the submission of detailed explanations establishing the context in which the withheld information was created.”
     “There is no support for CREW’s broad assertion that our court of appeals requires the submission of such information,” she added. “Although such information is often relevant to a deliberative process privilege claim, where an agency has to establish the context in which certain materials were used in order to show that a document is ‘both predecisional and deliberative,’ it is not required in determining the applicability of the attorney work product exemption.”
     Kessler also called CREW’s arguments regarding the deliberate process privilege “generic” and “not persuasive.”
     “There is no case law which mandates that an agency must always provide the extremely detailed descriptive information that CREW requests in order to justify withholding documents under the deliberative process privilege,” Kessler wrote. “In fact, our court of appeals has resisted making such categorical rules.”
     CREW fared better, however, with its arguments against using Exemptions 6 and 7 (C) to redact Young’s medical or personal records.
     “CREW is correct that this court has already found that there is a legitimate privacy interest at issue, the public interest is significant, and the information sought is likely to advance that interest,” the 31-page ruling states.
     Therefore, Kessler said, the criminal division and attorney’s office must disclose the withheld documents, or further justify why they should not do so.
     “For the foregoing reasons, the government’s motions for summary judgment will be granted in part and denied in part, and CREW’s cross-motions for summary judgment will be granted in part and denied in part,” the ruling concludes.
     The government must submit an updated Vaughn Index justifying the withheld information no later than Aug. 1.
     Vaughn v. Rosen was a 1973 case in which the D.C. Circuit denied claims that requested FOIA documents were subject to exemption. “A Vaughn Index must: (1) identify each document withheld; (2) state the statutory exemption claimed; and (3) explain how disclosure would damage the interests protected by the claimed exemption.”
     Young, 80, has been a member of the House of Representatives since 1973.

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