Naming Names

The United States District Court for the District of Columbia (District Judge Cooper) granted summary judgment to the Department of Justice in a FOIA request of Judicial Watch

In this Freedom of Information Act (“FOIA”) case, Judicial Watch seeks from the United States Department of Justice (“DOJ”) employee rosters for the office of Special Counsel Jack Smith. DOJ identified two such rosters and withheld them in full under FOIA Exemptions 6, 7(A), and 7(C).

Law

Judicial Watch does not dispute that the Special Counsel’s investigations can fairly be characterized as enforcement proceedings. Instead, it argues that the withheld records do not relate to the investigation because they are mundane lists of employees that all employers maintain regardless of whether they are investigating potential criminal conduct. Judicial Watch Opp’n Summ. J. & Cross-Mot. Summ. J. (“Judicial Watch Opp’n”) at 3–6. Judicial Watch may be correct that employee rosters are common, and that most employee rosters are not related to ongoing enforcement proceedings. But the fact remains that these employee rosters describe everyone working on active criminal investigations and were created to facilitate those investigations. They therefore relate to enforcement proceedings. Another court in this district reached the same conclusion in Citizens for Responsibility and Ethics in Washington v. DOJ (“CREW”), No. 20-cv-212 (EGS), 2022 WL 4598537 (D.D.C. Sept. 30, 2022), holding that a spreadsheet tab listing the names and salaries of investigators in a different Special Counsel’s office was compiled for law-enforcement purposes because DOJ “needs to track the identities of its members . . . to maintain an organized investigation.” Id. at *2, *4.

Threats

First, it appears logical and plausible that disclosing the rosters would expose SCO employees to threats and harassment. The Special Counsel is investigating the former President of the United States and events surrounding one of the most fraught elections in recent American history. The SCO has attracted “unprecedented public scrutiny and partisan political attacks[.]” First Brinkmann Decl. ¶ 22. “Since the SCO began its work, harassing, vulgar, and/or threatening communications have been received by SCO staff, even including harassing physical mail sent to one SCO staff member’s private residence[.]” Id. SCO employees have also been targeted by “swatting” attacks at their homes, including both the Special Counsel himself and at least one other member of the office. Second Declaration of Vanessa Brinkmann (“Second Brinkmann Decl.”) ¶ 6. An attorney in the SCO was also doxed, meaning that the attorney’s home address was publicly revealed without the attorney’s consent. See id. These threats and harassment are unlikely to end while the Special Counsel’s investigations continue, as harassment of SCO employees “has, if anything, only increased with time and with developments in the SCO’s activities.” Id. ¶ 7.

These threats make it harder for the SCO to do its work by distracting employees and disrupting their work.

The court rejected the various legal contentions of Judicial Watch in support of disclosure.  (Mike Frisch)