Parker v. United States Department of Justice, Office of Professional Responsability , 278 F. Supp. 3d 446 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LONNIE J. PARKER,
Plaintiff,
v. Civil Action No. 15-1070 (JEB)
UNITED STATES DEPARTMENT OF
JUSTICE, OFFICE OF PROFESSIONAL
RESPONSIBILITY,
Defendant.
MEMORANDUM OPINION
Much like the story arc of a classic horror flick, the cast of disputed documents in this
Freedom of Information Act reel has now been whittled down to one. Plaintiff Lonnie J. Parker
initially requested records relating to the Government’s discipline of a former Assistant United
States Attorney in the Eastern District of Arkansas, who was caught prosecuting cases without a
valid bar license. Defendant Department of Justice’s Office of Professional Responsibility
responded by identifying all relevant records, releasing some, withholding most (in part or in
full), and referring still others to separate DOJ components — including the Executive Office for
U.S. Attorneys — for processing. The Court’s prior Opinion largely upheld those release
decisions, but found that OPR had not explained the legal bases for withholdings made following
the EOUSA referral. Defendant has since clarified that area of confusion.
Satisfied with that explanation, Parker turns to one final issue in this latest round of
summary-judgment briefing. He points out that a letter from the EOUSA production is lacking
its attachment. Despite OPR’s retort that the attachment is both non-responsive and exempt from
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disclosure, the Court finds that Defendant must segregate and release a few paragraphs. Each
side’s Motion will thus be granted in part and denied in part.
I. Background
Because the prior Opinion sets forth the background, the Court skims over the bulk of the
case’s particulars. See Parker v. DOJ, 214 F. Supp. 3d 79, 82-83 (D.D.C. 2016). Broadly
speaking, this FOIA action pertains to Parker’s request for records “regarding any investigation
or consideration of disciplinary actions involving the unauthorized practice of law by former
Assistant U.S. Attorney Lesa Gail Bridges Jackson.” ECF No. 23-1 (Revised Third Declaration
of Ginae Barnett), Exh. D (FOIA Request) at 1.
Although OPR initially neither confirmed nor denied that there was information
pertaining to Bridges Jackson’s bar-lapse discipline, the agency later decided to search for and
release records. Parker, 214 F. Supp. 3d at 83. It identified roughly 250 pages of responsive
material, releasing some in their entirety, withholding (in part or in full) the majority, and
referring the remainder to EOUSA and other DOJ components for processing. Id.; see Third
Barnett Decl., ¶ 8.
The Court resolved several issues relating to this production in its earlier Opinion.
Relevant here, it held that OPR had properly withheld portions of four challenged documents
under FOIA Exemption 7(C) — which protects the privacy of individuals mentioned in law-
enforcement records — and that no further material could be meaningfully segregated and
released. See Parker, 214 F. Supp. 3d at 85-89. As to 56 pages of documents referred to
EOUSA, however, the Court found that OPR had improperly omitted “a description of the
specific legal bases for EOUSA’s withholdings.” Id. at 90.
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Defendant has now offered explanations for EOUSA’s decisions in a renewed Motion for
Summary Judgment. See ECF No. 39-2 (Declaration of David Luczynski), Exh. C (EOUSA
Vaughn Index). Parker has responded with his own Cross-Motion.
II. Analysis
Before the Court reaches the dénouement of this case — regarding a missing attachment
from an already-produced letter — it quickly disposes of two of the parties’ preliminary
arguments. First, following the Government’s new explanations, Parker no longer challenges its
withholding of the 56 pages of EOUSA materials at issue last time. See Def. Reply at 2-3; see
also Parker, 214 F. Supp. 3d at 90-91. Second, Plaintiff initially argues that OPR should have
searched harder for the aforementioned attachment. See Pl. Mot. at 5-9. It turns out, however,
that Defendant did look for the document after Parker prodded the agency to do so and, in fact,
found it. See ECF No. 42-1, (Fifth Declaration of Ginae Barnett), ¶ 6. Plaintiff thus rightfully
concedes that his “prior search objections, pertaining to Defendant’s failure to perform this
follow-up action, ha[ve] now been addressed.” Pl. Reply at 5 & n.4. This search-adequacy
challenge, too, can now be put to rest.
The lone surviving dispute, therefore, is whether OPR should produce that attachment —
a document that was appended to a previously disclosed cover letter from U.S. Attorney Paula
Casey found among the EOUSA records. See ECF No. 28-1 (Fourth Declaration of Ginae
Barnett), Exh. A (EOUSA Response) at OPR-41 (May 26, 2000, Letter from Paula J. Casey, U.S.
Att’y, E.D. Ark., to H. Marshall Jarrett, Counsel, OPR) at 1. The Casey Letter is addressed to the
head of OPR and asks for his input on a five-day suspension of Bridges Jackson that was
recommended “for reasons set forth in the enclosed draft letter.” Id. That attachment, which the
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Court has reviewed in camera, is a draft letter to Bridges Jackson proposing such a suspension
for conduct entirely unrelated to bar licensure.
Should the attachment be released? Answering this question involves examining, as an
initial matter, whether it is responsive to Plaintiff’s request and, next, if FOIA exemptions apply
to all or parts of the document.
A. Responsive Records
The threshold inquiry is whether the draft document attached to the Casey Letter is even
responsive to Parker’s FOIA request. In other words, the statute only compels disclosure “once
an agency identifies a record it deems responsive to a FOIA request.” Am. Immigration Lawyers
Ass’n v. Exec. Office for Immigration Review, 830 F.3d 667, 677 (D.C. Cir. 2016). Not so with
non-responsive materials. While Plaintiff asked for all records regarding Bridges Jackson’s bar-
lapse discipline, the attachment, on its face, discusses only another unrelated disciplinary
incident. OPR therefore contends that it is not responsive. See Def. Reply at 6-7.
Considered alone, it is unclear whether the document is encompassed by Parker’s FOIA
request. Yet the Court need not decide that issue, as it considers the draft letter’s possible
responsiveness as an attachment to an already-produced responsive record — namely, the Casey
Letter.
It is not disputed that the Casey Letter is, in fact, responsive. Although it does not
comment on Bridges Jackson’s license to practice law or lack thereof, OPR found it in the “file
pertaining to former AUSA Bridges Jackson’s bar lapse.” Fifth Barnett Decl., ¶¶ 3, 5-6.
Presumably, as a result, the Government agrees that the Casey Letter is “a responsive
document.” Def. Reply at 7.
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While this does not push Parker past the finish line, he is now off the starting block.
Significantly, the D.C. Circuit recently held in AILA that “if the government identifies a record
as responsive to a FOIA request,” it cannot “redact particular information within the responsive
record on the basis that the information is non-responsive.” 830 F.3d at 677. In other words, a
single record cannot be split into responsive and non-responsive bits. If the Casey Letter and its
attachment are one record — i.e., “a unit” — then FOIA requires disclosure of both together. Id.
The key is understanding what it means to be a single “record.” While FOIA “provides
no definition of the term ‘record,’” agencies “in effect define a ‘record’ when they undertake the
process of identifying records.” Id. at 678 (emphasis added); see McGehee v. CIA, 697 F.2d
1095, 1108 (D.C. Cir. 1983). In an expansive bureaucracy, documents and information will not
always fall into discrete sets. When collecting these materials together, an agency might
combine pages into one document (e.g., a set of handwritten notes) or split others into multiple
parts (e.g., a compendium of memoranda). “[T]he dispositive point is that, once an agency itself
identifies a particular document or collection of material — such as a chain of emails — as a
responsive ‘record,’” then it must produce the whole, absent other statutory exemptions that
allow redactions. AILA, 830 F.3d at 678. Courts may then review that determination.
DOJ also provides helpful criteria “for agencies to take into account when determining
whether it is appropriate to divide . . . a document into discrete ‘records.’” Id. (citing DOJ, OIP
Guidance: Determining the Scope of a FOIA Request, FOIA Update, Vol. XVI, No. 3 (1995),
https://www.justice.gov/oip/blog/foia-update-oip-guidance-determining-scope-foia-request); see
Shapiro v. CIA, No. 14-19, 2017 WL 1216505, at *11 (D.D.C. Mar. 31, 2017). As Judge
Christopher R. Cooper of this district ably summarized, those considerations include “the
requester’s intent, maintaining the integrity of the released documents, the scope of the request,
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the agency’s own knowledge regarding storage and maintenance of documents, efficiency, cost,
resource allocation, and maintaining the public’s trust in transparency.” Shapiro, 2017 WL
1216505, at *11.
The Court need only discuss a few of these factors, as they largely favor treating the
Casey Letter and its attached draft letter as one indivisible whole. The Casey Letter, in fact,
itself touches on the subject matter of the attachment and refers the recipient to examine its
contents. See Casey Letter at 1 (pointing reader to “reasons set forth in the enclosed draft
letter”); see also AILA, 830 F.3d at 678 (asking how “an agency itself identifies a particular
document or collection of material”). While OPR notes that the enclosure was not initially found
in the same location as the cover letter, that fact is not dispositive. See Def. Reply at 7; Fifth
Barnett Decl., ¶¶ 3, 5-6. For one, in the file where it was found, the attachment and another copy
of the Casey Letter were co-located. See Fifth Barnett Decl., ¶ 6. Lay requesters also are hardly
privy to OPR’s numerous document-management systems, and there is no indication that Parker
asked for the contents of some specific file and not others. See ECF No. 14-1 (Second
Declaration of Ginae Barnett), ¶ 6; Third Barnett Decl., ¶¶ 4-7; see also Shapiro, 2017 WL
1216505, at *11. From the Government’s description, moreover, the attachment appears to have
been easily retrievable after a search of its records systems. See Fifth Barnett Decl., ¶ 6.
Although there is no per se rule that letters and their attachments must be treated as one,
the Court finds that these two pieces belong together. See Hall v. CIA, 881 F. Supp. 2d 38, 62
(D.D.C. 2012) (requiring production where agency “maintained and controlled the documents
that reference the other documents, many of them attachments”). FOIA therefore requires
complete disclosure of the whole record unless information in the Casey Letter’s attached draft
document is covered by exemptions. The Court turns to that question next.
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B. Reasonably Segregable, Non-Exempt Material
The agency must “disclose all reasonably segregable, nonexempt portions of the
requested record.” Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 58 (D.C. Cir.
2003). OPR contends that Exemptions 5, 6, and 7(C) apply, though it mentions nothing about
potential segregability in its briefing. See Def. Reply at 7-12. This Court nonetheless has an
“affirmative duty to consider the segregability issue sua sponte.” Elliott v. USDA, 596 F.3d 842,
851 (D.C. Cir. 2010) (quoting Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007)). It does so
here in the context of the applicable exemptions.
Before the Court dives in, a further breakdown of the documents at issue may help the
reader. First off, in Casey’s cover letter, she discusses a recent “problem with an Assistant
United States Attorney in my office” unconnected with bar licensure and mentions that she
“proposed a five day suspension for reasons set forth in the enclosed draft letter” to the AUSA.
See Casey Letter at 1. That appended draft letter can then be broken up into three segments. The
first introductory paragraph proposes that five-day suspension, without mentioning the specific
reason, and lists the federal regulations and public agency guidance that govern all such
suspensions. The next six paragraphs, spanning pages one and two, discuss a particular incident
and the justification for that proposed disciplinary action. The remainder of the attachment, from
the last full paragraph on page two onward, details DOJ’s suspension procedures as set forth in
the aforementioned published regulations and public guidance. See, e.g., 5 C.F.R. §§ 752.201-
.203. That last section makes no mention of the specifics of Bridges Jackson’s alleged
misconduct.
In now applying the invoked FOIA exemptions, all point the same way — namely, that
OPR should release both the introductory paragraph and the terminal part detailing DOJ
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procedures, but may redact the reasons behind the proposed suspension. The Court discusses
Exemption 5 and then Exemptions 6 and 7(C) together.
First, Exemption 5 permits an agency to withhold “inter-agency or intra-agency
memorandums or letters that would not be available by law to a party other than an agency in
litigation with the agency,” including records protected by the “deliberative process privilege.” 5
U.S.C. § 552(b)(5). That privilege covers “documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated.” Dep’t of Interior v. Klamath Water Users Protective
Ass’n, 532 U.S. 1, 8 (2001) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975));
accord In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). “The ‘key question’ in identifying
‘deliberative’ material is whether disclosure of the information would ‘discourage candid
discussion within the agency.’” Access Reports v. DOJ, 926 F.2d 1192, 1195 (D.C. Cir. 1991)
(quoting Dudman Comms. Corp. v. Dep’t of Air Force, 815 F.2d 1565, 1567-68 (D.C. Cir.
1987)); see Nat’l Sec. Archive v. CIA, 752 F.3d 460, 462 (D.C. Cir. 2014) (explaining purpose
“to encourage the candid and frank exchange of ideas in the agency’s decisionmaking process”).
As with other exemptions, “if the government can segregate and disclose non-privileged
factual information within a document, it must.” Loving v. Dep’t of Defense, 550 F.3d 32, 38
(D.C. Cir. 2008). “[T]he privilege applies only to the ‘opinion’ or ‘recommendatory’ portion of
the report, not to factual information which is contained in the document.” Coastal States Gas
Corp. v. Dep’t of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980). The agency, moreover, may
waive the privilege by placing “a specific fact . . . in the public domain.” Public Citizen v. Dep’t
of State, 11 F.3d 198, 201 (D.C. Cir. 1993); see Davis v. DOJ, 968 F.2d 1276, 1279 (D.C. Cir.
1992).
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These principles lead to partial disclosure here. To begin, the reasons for the five-day-
suspension “recommendation[]” fall within the heartland of the privilege. See Klamath, 532
U.S. at 8 (quoting Sears, 421 U.S. at 150). Some assurance against later disclosure is necessary
if government employees are expected to have “candid and frank” discussions of such sensitive
topics as internal discipline. See Nat’l Sec. Archive, 752 F.3d at 462. The rest of the attachment,
however, is not privileged. Its introductory paragraph reveals no content other than what the
cover letter itself publicly discloses — i.e., that the U.S. Attorney planned to propose a five-day
suspension. That paragraph then cites federal regulations and agency guidance on suspension
procedures, and the later paragraphs describe those rules. See, e.g., 5 C.F.R. §§ 752.201-.203.
The Court would be hard pressed to conclude that this disclosure of information about DOJ’s
disciplinary procedures that are, in substance, already public knowledge would in any way stifle
agency deliberations. See Coastal States, 617 F.2d at 868 (rejecting privilege as to “simply
straightforward explanations of agency regulations in specific factual situations”). Because those
portions are written in neutral language such that they are “severable without compromising the
[privileged] remainder of the document[],” EPA v. Mink, 410 U.S. 73, 91 (1973), OPR must
disclose these segments.
Exemptions 6 and 7(C) cast no wider a net. These two rules “seek to protect the privacy
of individuals identified in certain agency records.” ACLU v. DOJ, 655 F.3d 1, 6 (D.C. Cir.
2011). Exemption 6 protects “personnel and medical files and similar files” where disclosure
“would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6).
Exemption 7(C) permits a withholding of “records or information compiled for law enforcement
purposes” where disclosure “could reasonably be expected to constitute an unwarranted invasion
of personal privacy.” Id. § 552(b)(7). The latter exemption “establishes a lower bar for
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withholding material.” ACLU, 655 F.3d at 6. As the Court held last time with similar
documents regarding internal investigations of AUSA misconduct, this attachment constitutes a
law-enforcement record such that the more liberal Exemption 7(C) applies. Parker, 214 F. Supp.
3d at 86. The Court thus need not consider Exemption 6. Id.
As with the deliberative-process privilege, the Court must ask if portions that do not
implicate privacy can be segregated and released. See Shapiro v. DOJ, No. 13-555, 2017 WL
908179, at *2 (D.D.C. Mar. 6, 2017). The agency likewise may not rely on Exemption 6 or 7(C)
to withhold “information that has been ‘officially acknowledged’ or is in the ‘public domain.’”
Bartko v. DOJ, 62 F. Supp. 3d 134, 142 (D.D.C. 2014) (quoting Davis, 968 F.2d at 1279).
The result, then, is very much the same. First off, these privacy exemptions may protect
the descriptions of Bridges Jackson’s alleged wrongdoing and the reasons for why that conduct
warranted discipline. As the Court previously held, OPR may withhold the details of “internal
disciplinary actions considered or taken.” Parker, 214 F. Supp. 3d at 87-89. While those middle
paragraphs may be redacted, the rest must be released. The attachment’s introductory paragraph
includes “specific information in the public domain that appears to duplicate that being
withheld” — to wit, the proposal of a five-day suspension. Wolf v. CIA, 473 F.3d 370, 378
(D.C. Cir. 2007) (quoting Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)); see
Casey Letter at 1 (“I proposed a five day suspension for reasons set forth in the enclosed draft
letter.”). The remainder of the first paragraph and the final section of the attachment, again,
reveal nothing more than neutral summaries of applicable agency regulations that contain only
public information, not private facts about Bridges Jackson.
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In sum, of the full Casey Letter attachment, Defendant must release the first paragraph
and the portion beginning with the last full paragraph of page two until the end of the document.
The rest it may elect to redact.
III. Conclusion
For these reasons, the Court will grant in part and deny in part OPR’s Motion for
Summary Judgment and grant in part and deny in part Parker’s Cross-Motion for Summary
Judgment. The Court will also order Defendant to release portions of the Casey Letter
attachment to Plaintiff within fourteen days. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: August 16, 2017
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