Ten redacted passages in former special counsel Robert Mueller’s report — including one that discusses the decision not to bring criminal charges against Donald Trump Jr. and others — were ordered to be revealed following a yearslong legal battle by BuzzFeed News.
In an 18-page opinion issued Tuesday, a three-judge panel of the US Court of Appeals for the DC Circuit unanimously ruled that there is a “significant public interest” in lifting the veil of secrecy and that “disclosure would also show how the Special Counsel interpreted the relevant law and applied it to already public facts in reaching his declination decisions.”
The Justice Department had said the passages should be kept from public view to protect the privacy rights of the people in question. But after reviewing an unredacted copy of the report, which summarized the investigation into Russia’s interference in the 2016 election and then-president Donald Trump’s attempts to obstruct the inquiry, the court determined that those rights were “diminished” by other parts of the report.
“The factual and personally identifying information alleged to be contained in the redacted passages,” the opinion said, “is available elsewhere in the Report.” It continued, “The redacted passages contain no new facts; they contain no new information or descriptions of conduct that have not been made public elsewhere in this very Report. The privacy interests, then, are not robust, as no additional reputational or stigmatizing harm can result from the disclosure of the information contained therein.”
As a result, “the strong public interest tips the scale in favor of disclosure, as releasing this information would show only government decisionmaking, not new private information.” The opinion was written by Judge Karen Henderson, a George H.W. Bush appointee.
The appeals court opinion said the Department of Justice must lift redactions covering a total of 10 passages — on pages 9, 179, 180, and 183 — that discuss the decision not to charge people with campaign finance violations and a computer-related crime.
The court rejected BuzzFeed News’ request as it applied to Mueller's deliberations about individuals who were investigated for making false statements but not charged because it would reveal new details about them not contained elsewhere in the report and would result in “reputational harm.”
“Of the individuals whose privacy interests may be jeopardized by disclosure of the requested information, only one is a public official. The remaining individuals are private citizens who served on a presidential campaign,” the opinion said.
The Department of Justice can still appeal the decision to the Supreme Court.
The government argued that these new disclosures were not necessary because most of the report has already been made public, and because Congress also released its own report about Russia’s interference in the 2016 election. But the appeals court described the government’s argument as “irrelevant” because Mueller’s legal analysis of whether to bring charges has not been released and likely would “contribute significantly to public understanding of the operations or activities of the government.”
One of the redacted passages the government must disclose corresponds to a public portion of the report related to Donald Trump Jr. and his communication with WikiLeaks during the 2016 campaign. Last year, BuzzFeed News forced the government to unredact other previously secret portions of the Mueller report relating to WikiLeaks. Those passages showed Mueller’s office investigated WikiLeaks and its founder, Julian Assange, for the hacking of Democratic National Committee servers as well as for possible campaign finance violations, but ultimately chose not to bring criminal charges. Mueller's probe produced 37 indictments and seven convictions.
In 2019, BuzzFeed News filed a FOIA lawsuit against the Department of Justice for a complete, unredacted copy of Mueller’s report. Although the report had already been publicly released, BuzzFeed News sought it through a public records request because doing so would force the government to explain the justification for each redaction. That would also provide an opportunity to challenge the redactions. Since then, US District Court Judge Reggie Walton twice ruled in favor of the news organization and ordered the government to release dozens of secret passages in the report.
BuzzFeed News filed an appeal to the US Court of Appeals for the DC Circuit last year after the lower court rejected its attempts to win the release of additional sections of the report. The appeals court said Walton should order the Justice Department to disclose the portions of the report it withheld.
Matt Topic, BuzzFeed News’ FOIA attorney, said Tuesday’s appeals court’s decision “reaffirms the public’s right to understand how the government makes important decisions.”
“Unfortunately government agencies routinely violate FOIA, and it’s encouraging whenever courts apply the law and hold the government to its transparency obligations,” Topic said.