Wisdom v. United States Trustee Program , 232 F. Supp. 3d 97 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALLEN L. WISDOM,
Plaintiff,
v. Civil Action No. 15-1821 (JEB)
UNITED STATES TRUSTEE PROGRAM,
Defendant.
MEMORANDUM OPINION
As Michael Scott was admonished on The Office, there is a lot more to bankruptcy than
just “declaring” it loudly to coworkers. Plaintiff Allen Wisdom knows this fact all too well. He
has been going through a bankruptcy proceeding before a federal court in Idaho since 2011. At
the outset of that action, the United States Trustee appointed Jeremy Gugino to act as the private
trustee on his case. Wisdom and Gugino, however, quickly arrived at loggerheads, and, by the
close of 2013, the former had filed an adversary proceeding against the latter, who then resigned
from his post.
At issue in the present case are Freedom of Information Act requests that Wisdom
subsequently lodged with Defendant United States Trustee Program to acquire information
related to his bankruptcy proceeding and Gugino’s service as a trustee. Having been
unsuccessful in obtaining the material he sought, Wisdom brought this pro se action, in which
both sides now move for summary judgment. The Court concludes that an issue of material fact
exists as to whether Defendant conducted adequate searches in response to these requests and
properly relied on the exemptions cited to justify most of its withholdings. The Court will,
therefore, largely deny both Motions.
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I. Background
To understand the present competing Motions requires a lengthy back story, which sets
forth the protracted back-and-forth between Wisdom and the Agency over the scope and
processing of the FOIA requests at issue. After the Court briefly outlines the general agency
structure and the facts that gave rise to Wisdom’s desire for these records, the subsequent
sections march through this procedural background as it pertains to each of his inquiries. A final
section rounds out the retelling with the particulars of what has occurred since suit was filed.
A. General Agency Structure
The United States Trustee Program, housed within the Department of Justice, oversees
the administration of bankruptcy cases and private trustees. See ECF No. 14 (Motion) at 3.
Sitting atop its structure, the Executive Office for the United States Trustees (EOUST) provides
general policy and legal guidance to trustees and handles the Program’s administrative functions,
including responding to FOIA requests. Id. at 4. EOUST, in furtherance of these duties, also
promulgates administrative procedures for the suspension and removal of bankruptcy trustees.
See 28 C.F.R. § 58.6.
Moving down the pyramid, a United States Trustee is appointed by the Attorney General
for each federal judicial district in the country. See 28 U.S.C. § 581(a). This Trustee, in turn,
establishes, maintains, and supervises the panel of private trustees who administer Chapter 7
bankruptcies in those districts. See Mot. at 4. The Trustee for Region 18 works out of the
Regional Office in Seattle and oversees the judicial district of Idaho (among others).
B. Bankruptcy Proceeding
On July 12, 2007, the Region 18 Trustee appointed Jeremy Gugino to serve as a private
trustee on its panel. Id. at 5-6 & Exh. R.
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Around four years later, Wisdom filed a voluntary petition for relief under Chapter 7 of
the Bankruptcy Code in the United States Bankruptcy Court for the District of Idaho. Id. at 6.
The Trustee, accordingly, appointed Gugino to his case. Id. at 6. The two men, however, did not
work well together, and, in December 2013, Plaintiff filed an adversary proceeding in the
bankruptcy court against Gugino, alleging that the trustee had engaged in various forms of
misconduct in handling his case. See ECF No. 18 (Cross-Motion) at 6.
Shortly thereafter, on December 31, 2013, Gugino resigned from his position as a
member of the region’s private-trustee panel. See Mot. at 6 & Exh. R.
C. FOIA Request 2015-2053
On March 19, 2015, over a year later, Plaintiff submitted a FOIA request to EOUST for
15 categories of records that related either to his bankruptcy proceeding or to Gugino’s service as
a trustee. See ECF No. 14-1 (Declaration of Joseph Carilli), ¶ 6. The request stated that it
“pertain[ed] only to records located at the Office of the United States Trustee, District of Idaho”
and declared that Wisdom was willing to pay up to $450 in attendant processing fees. See id.,
Exh. A at 2, 4. That very same day, EOUST sent him a letter explaining that his “complex”
request had been assigned tracking number 2015-2053. Id., Exh. B.
A week later, the agency followed up with a longer letter, this time asking Wisdom to
provide more details on what he was seeking to help it “accurately estimate all applicable fees
for search, review, and/or duplication of [the] requested records.” Id., Exh. C. at 1. Defendant
further explained that, due to privacy concerns, “most if not all of the [requested] records relating
to [Gugino’s] trustee performance evaluations [we]re likely to be withheld in part or in full under
FOIA exemptions.” Id. The letter nevertheless informed Wisdom that he would be responsible
for fees related to processing these records unless he chose to narrow his inquiry’s scope. Id. at
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1-2. The agency, finally, requested that Wisdom confirm that his request was limited only to
records located at the Boise office and, in a footnote, explained that many of the requested
documents would likely be held at EOUST here in Washington, D.C. Id. at 2.
Plaintiff quickly responded. Id., Exh. D. In his own letter, on April 9, 2015, Wisdom
declined to narrow the scope of his request and disagreed with the agency’s prediction that
certain documents would ultimately be exempt from disclosure. Id. at 1-2. Wisdom also
confirmed that his request focused only on records located at the Boise office, but, in his own
footnote, indicated that it did so because certain regulations indicated that the documents he was
requesting are “initiated and/or generated by the District of Idaho.” Id. at 3 & n.15. He then
hedged, saying, “If for some reason, unknown to me, records requested were either initiated by
or generated by the Boise, Idaho office but are actually located elsewhere then the request for the
records would be for wherever located.” Id.
A month later, EOUST responded that it now understood the scope of 2015-2053 to
include “all records of any nature contained in [Gugino’s] oversight file . . . whether maintained
in Boise, Idaho or other [USTP] offices.” Id., Exh. E. To speed his recovery of the Boise
documents, however, EOUST recommended that Wisdom agree to a two-stage “rolling release
protocol.” Id. at 4. The agency, under this plan, would first search for and release records found
in the Boise office for his review; if he wished to proceed with more records, only then would
the agency go to a stage-two search of the other offices. Id. EOUST concluded that this “two-
stage method” would best enable Wisdom “to make a more informed decision as to whether [he]
wish[ed] to narrow the scope of [his] search to just those records obtained from the Boise, Idaho
office” at a later date. Id. The agency estimated as well that the fees for the request would fall
around $224.50 – well below Wisdom’s previous commitment to pay up to $450. Id. at 3. It
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nevertheless asked him to please “let [the agency] know whether this is acceptable” and to
provide pre-payment of these fees by June 8, 2015. Id. at 4.
Wisdom adequately complied, agreeing on May 11 that the agency’s “consolidated
review of [his] request [wa]s accurate” and indicating that he “d[id] not object to the ‘rolling
release’ protocol.” Id., Exh. F. He also attached a check for the advance fee. Id. at 2.
All cylinders seemed set to fire, then, but once the agency began the search, it discovered
that the archiving of certain trustee reports had been done by date, rather than by trustee. Id.,
Exh. G. EOUST thus reached out to Wisdom a week later to inform him that it would now take
significantly longer than the agency had originally estimated to weed out the reports related to
Gugino. Id. Defendant also noted that the Boise office had confirmed to EOUST in the
meantime that some responsive reports were consolidated in the Region 18 Office with reports
from other federal districts, meaning that at least some of the requested documents would not be
located at the Boise office after all. Id.
Wisdom responded to clarify that he was not seeking some of the difficult-to-sift reports
and to ask for an explanation of why relevant records might be located outside the Boise office
despite certain regulations to the contrary. Id. The parties worked out these issues over the next
few days in a further exchange of emails, and things again seemed to be on track for a reasonably
timely completion of the searches. Id., Exh. H.
EOUST, indeed, thereafter proceeded to search for the documents and initially returned
Gugino’s check for $224.50 to him on the ground that it did not require advance payment for
searches that were projected to cost less than $250. Id., Exh. I. By July 23, 2015, however, the
agency’s stage-one search of the Boise office had already totaled 16.75 hours, thus yielding a fee
of $411.25. Id., Exh. J at 2. The agency sent Wisdom another letter requesting that he now
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remit that amount by August 24, 2015, or it would close the processing of his request. Id.
Wisdom timely sent in the requested amount again, although the government had still not turned
over any records. Id., Exh. K.
Nearly a month later, in fact, Wisdom had still heard nothing from the agency about the
documents he had requested. Frustrated that he had yet to see a single record, Plaintiff sent
another email to Defendant, asking it to let him know when his request, now pending for 167
days, would be completed, “at least” as to the first part. Id., Exh. L. EOUST responded the next
day that it anticipated a partial release later that month. Id., Exh. M.
The agency, however, again failed to produce anything on its proffered timeline. Well
over a month later, on October 8, Wisdom thus inquired anew about the status of his request. Id.,
Exh. N. He reiterated his previous complaint that the agency’s delay in producing records was in
serious breach of the “statutory time requirement in which to comply with release of the
requested documents” and asked that it either provide a reasoned basis for its refusal to give him
the documents or fast-track their release. Id.
The very next day, EOUST sent Wisdom a partial stage-one batch of documents. Id.,
Exh. O. This initial release contained 58 pages “subject to redactions pursuant to FOIA
Exemptions (b)(5) and/or (b)(6).” Id. at 2. Over two months later, the agency sent a second
stage-one crop of 111 pages, again subject to redactions under various FOIA exemptions. Id.,
Exh. P. Two months later, on February 2, 2016, the agency sent a third – which it described as a
“final” – release of redacted records from its search of the Boise office. Id., Exh. Q.
In a footnote accompanying this final set of documents, the agency indicated that “for
administrative purposes only” it would consider these stage-one releases – i.e., the first half of
his “bifurcated” 2015-2053 request – as the entirety of his FOIA request, but, should he “wish to
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pursue the second part of [his] request,” it would prioritize that search under a new case number
as though it had been received on March 19, 2015. Id. at 1 n.2. The agency further indicated
that it would apply the same fee rates to this stage-two search if he elected to proceed with it. Id.
at 2-3. By this time, nearly a full calendar year had passed since Wisdom first submitted his
2015-2053 request and, as discussed below, this case had already been filed.
D. FOIA Request 2016-2003
Four days after the first 2015-2053 release, Wisdom submitted on October 13, 2015,
another FOIA request to the Agency for any records related to the processing of his 2015-2053
request. Id., Exh. S. He did so based on his belief that someone within the agency was
obstructing his access to the documents he had requested. See ECF No. 18-1 (Declaration of
Allen L. Wisdom), ¶ 26. In particular, he felt that the agency’s vacillations on the location of the
records, the applicable exemptions, and the fees associated with the search might indicate
interferance with his efforts to acquire more information about Gugino’s service as a trustee. Id.,
¶¶ 26, 28. The agency wrote back two days later, designating this new FOIA request as 2016-
2003 and, as before, classifying it as complex. See Mot., Exh. T.
Several months went by before the agency followed up with a call to Wisdom to discuss
his new inquiry’s scope. Id., Exh. U. This conversation was immediately memorialized in an
email from EOUST to Wisdom on January 15, 2016, for the express purpose of “confirm[ing]
what we discussed and to ensure that [the agency] had described accurately how [Wisdom]
wish[ed] to narrow [his request’s] scope.” Id. In sum, EOUST would search for: “1) all
administrative processing notes in the Idaho office; and 2) any correspondence between the
Idaho office and the EO about FOIA 2015-2053 regarding the documents themselves; and 3) any
email or other correspondence such as reports showing the procedures EO staff employed in
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processing the record as received from Idaho.” Id. at 2. The search, however, would exclude
“[Executive Office]-only, internal records discussing solely the application of exemptions” and
“correspondence relating to communications with Assistant United States Attorney Fred Haynes
regarding” this lawsuit (discussed below) over the agency’s actions in regard to request 2015-
2053. Id. at 2. A day later, Wisdom wrote back confirming this description was “quite
accurate.” Id. at 1.
Plaintiff and the agency also negotiated a further narrowing of this request on February
23, 2016, again documenting their agreement in an email that Wisdom confirmed to be accurate.
Id., Exh. V. This time they agreed that the agency would look for “[a]ny conversations between
any employee of the UST program located in the Boise, Idaho field office and a third party,
regarding your 2015-2053 FOIA request.” Id.
A day later, EOUST confirmed that “[a]fter a reasonable search by the Boise, Idaho
office of their agency records, no records were located that appear to meet your request for
information.” Id., Exh. W. In other words, the agency released no documents pursuant to this
second request, 2016-2003.
E. FOIA Request 2016-2033
On February 23 – i.e., the same day that the parties communicated about narrowing his
2016-2003 FOIA request – Wisdom confirmed that he did “wish to go forward with the second
phase [of 2015-2053] and obtain documents from the other than [sic] Idaho UST offices.” ECF
No. 24 (Opposition to MSJ), Suppl. Exh. B. Over the next few days, the agency thus wrote two
follow-up emails to Wisdom, referring to his stage-two request as a “new” FOIA case and
designating it a tracking number of 2016-2033. Id., Suppl. Exh. C.
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Wisdom immediately objected to the agency’s characterizations of this as a “new”
inquiry via his own letter on February 26, specifically complaining that its “unilateral[] re-
designat[ion]” of his request was unjustified when it was simply the previously agreed-upon
second stage of 2015-2053. Id., Suppl. Exh. D. To support his position, Wisdom quoted from
previous letters exchanged between himself and the agency about the expediency benefits of a
rolling two-stage process. Id. He noted, in particular, that the language in these communications
of a “second stage” hardly implied the agency would consider the search to be an entirely “new”
request at some future point. Id. A few days later, the agency responded by insisting that his
request was indeed “new,” though it also nevertheless continued to refer to it as the second part
of his “bifurcated” 2015-2053 request. Id., Suppl. Exh. E.
On March 7, 2016, Defendant completed its search of other USTP offices for responsive
records and notified Wisdom via email that it estimated a review of the discovered documents
would cost him around $567.53 in pre-paid fees. Id., Suppl. Exh. G at 3. Within days, Wisdom
sent in the payment, and the parties worked out the exclusion of some potentially responsive
documents in an effort to reduce unnecessary or duplicative costs. Id., Suppl. Exhs. F & G.
On March 18, the agency sent Plaintiff 209 pages of redacted documents pursuant to this
final request. Id., Suppl. Exh. I.
F. Procedural History
On October 23, 2015, shortly after the agency’s first 2015-2053 release and Wisdom’s
submission of request 2016-2003 (the one related to the processing of his first request), he filed
the current action. See ECF No. 1 (Complaint). In his initial Complaint, Wisdom alleged that
USTP had unlawfully withheld and redacted documents relevant to his 2015-2053 request and
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initiated a multi-stage “rolling release” schedule that violated their mutual agreement to timely
turn over the documents in just two stages. Id., ¶¶ 23-27.
A little more than a month later, on November 30, Wisdom amended his Complaint to
reflect the agency’s continued failure to produce further documents or to make a final
determination on his 2015-2053 request. See ECF No. 2 (Amended Complaint). He also added
a new claim to challenge the agency’s tardy response to his 2016-2003 request, noting that he
had heard nothing from the agency in over twenty days since it had first assigned that inquiry a
tracking number. Id., ¶¶ 28-35. In short, Wisdom effectively expanded the scope of this action
to include the agency’s failure to produce documents for both 2015-2053 and 2016-2003 within
the applicable statutory timeframes provided by FOIA, as Defendant had turned over just one
partial release of 2015-2053 documents at that point.
After Defendant’s Answer, the Court set a briefing schedule, and the agency made the
subsequent additional releases discussed above. The parties’ Cross-Motions for summary
judgment are now ripe.
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A genuine issue of material fact is one that would change the outcome of the litigation.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to
construe the conflicting evidence in the light most favorable to the non-moving party. See
Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006). Factual assertions in the
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moving party’s affidavits or declarations may be accepted as true unless the opposing party
submits his own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly,
963 F.2d 453, 456 (D.C. Cir. 1992).
FOIA cases typically and appropriately are decided on motions for summary judgment.
See Defenders of Wildlife v. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v.
U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In FOIA cases, the agency
bears the ultimate burden of proof. See Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3
(1989). The Court may grant summary judgment based solely on information provided in an
agency’s affidavits or declarations when they describe “the documents and the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded “a presumption
of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and
discoverability of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
III. Analysis
Congress enacted FOIA in order “to pierce the veil of administrative secrecy and to open
agency action to the light of public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361
(1976) (quotation marks and citation omitted). “The basic purpose of FOIA is to ensure an
informed citizenry, vital to the functioning of a democratic society, needed to check against
corruption and to hold the governors accountable to the governed.” John Doe Agency v. John
Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted). The statute thus provides that “each
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agency, upon any request for records which (i) reasonably describes such records and (ii) is made
in accordance with published rules . . . shall make the records promptly available to any person.”
5 U.S.C. § 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction
to order the production of records that an agency improperly withholds. See id. § 552(a)(4)(B);
Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 754-55 (1989). In
making this determination, the court “at all times . . . must bear in mind that FOIA mandates a
‘strong presumption in favor of disclosure.’” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d
26, 32 (D.C. Cir. 2002) (quoting Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)). Thus, in
order to satisfy FOIA, an agency must demonstrate both that it adequately searched for
responsive records and that it turned over all such records not subject to a specific exemption.
As mentioned above, the parties have now cross-moved for summary judgment. Before
addressing the merits of these Motions, the Court first takes up Defendant’s contention that what
the agency designated as request 2016-2033 should not be considered here because Wisdom did
not first administratively appeal that particular determination. The sections that follow then
address, respectively, whether the agency’s supportive declarations comport with the Federal
Rules of Civil Procedure, the adequacy of its three searches for responsive records, its reliance
on specific exemptions to justify its attendant redactions, and, finally, its compliance with
FOIA’s segregability requirements. At the end of the day, the Court determines that, for the
most part, USTP has not sufficiently discharged its duty.
A. Exhaustion
Before diving into the merits of these Cross-Motions, the Court must first consider a
threshold issue that could narrow the scope of that review. In its Opposition, Defendant briefly
asserts that Plaintiff’s challenge to the 2016-2033 release – i.e., 2015-2053 documents that were
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located outside its Boise office – has no purchase here because Wisdom did not exhaust his
administrative remedies by appealing that particular determination through the agency’s
procedures first. See Opp. at 15-16. In support, the agency summarily states that it properly
classified 2016-2033 under a distinct tracking number when Wisdom informed it that he wished
to proceed with 2015-2053’s second stage in February 2016. Id. at 15. Because Defendant also
later notified him, when it released responsive records in March 2016, that he had a right to
appeal that determination, the agency contends that his failure to pursue such relief means he
“technically” failed to exhaust his remedies as to those records. Id. at 16.
Administrative exhaustion of a FOIA request is, as the agency argues, “generally required
before filing suit in federal court.” Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003) (citing
Oglesby v. Dep’t of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990)) (exhaustion requirement gives
agency opportunity to exercise discretion and expertise and develop factual record to support its
decision). This requirement, however, is not jurisdictional and, as a result, is subject to
exceptions. Id. A plaintiff, in particular, need not administratively appeal an agency’s FOIA
determination where he has waited the time specified by statute for a final response and, having
received none, files suit in district court. Oglesby, 920 F.2d at 63-64. In that situation, the Court
deems the requester to have “constructively” exhausted his administrative remedies and allows
him to seek immediate relief “to compel the agency’s response.” Id.; see also Nurse v. Sec’y of
the Air Force, 231 F. Supp. 2d 323, 328 (D.D.C. 2002). “Once constructive exhaustion occurs,
[moreover,] any available administrative appeal – i.e., actual exhaustion – becomes permissive in
the sense in which the term is used here; the requester may pursue it, but his failure to do so does
not bar a lawsuit.” Spannaus v. United States Dep’t of Justice, 824 F.2d 52, 58 (D.C. Cir. 1987).
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Wisdom met these constructive-exhaustion requirements here. To begin, Defendant does
not argue that he has not exhausted his claims with regard to his 2015-2053 request; it only
believes that 2016-2033 should be treated separately. Yet, if, as Plaintiff maintains, his 2016-
2033 request is merely a component of 2015-2053, then he must have exhausted that as well.
Whether this is true is thus the question the Court must decide first.
Constructive exhaustion is determined by the actions (or lack thereof) an agency has
taken by the time a suit is filed in the district court. See Oglesby, 920 F.2d at 64. As explained
above, when Wisdom filed in October 2015, long after the statutory timeframe for an agency
determination had passed for request 2015-2053, the requirement that he must first pursue an
administrative appeal with regard to that inquiry became permissive. Spannaus, 824 F.2d at 58.
At that point in time, moreover, both parties plainly considered the non-Boise documents to be
part and parcel of 2015-2053. See Mot., Exh. E (acknowledging 2015-2053 to include “all
records of any nature contained in [Gugino’s] oversight file . . . whether maintained in Boise,
Idaho or other USTP offices”) (emphasis added); see also Exhs. J, O (referring to “the search”
rather than “searches” in referencing documents held both inside and outside Boise office).
Defendant, in fact, never indicated that it would consider a search of other offices as an entirely
new request until four months after Wisdom filed this case. Id., Exh. Q.
The agency’s unilateral and tardy reclassification, taken over Plaintiff’s active protests,
cannot strip Wisdom of his right to judicial review of an already-pending claim. The purpose of
FOIA’s exhaustion requirement is not to trick an unsuspecting requestor into relinquishing his
right to his day in court, but rather to allow the agency an “opportunity to exercise its discretion
and expertise on the matter and to make a factual record to support its decision.” Oglesby, 920
F.2d at 61. To preserve these legitimate ends, the agency easily could have sought Wisdom’s
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agreement to treat the second part of his bifurcated case as an entirely new request when it
proposed its two-stage search method. It did not do so. See Mot., Exh. E. In such a case,
Wisdom might well have refused to go along with such a plan, as he was clearly hoping to get
the documents within something akin to the speedy timeframe required by the FOIA statute.
The agency’s subsequent actions, moreover, also bar an exhaustion defense here. As
discussed above, when it created the 2016-2033 designation for these records in February 2016,
Defendant assured Wisdom that this change would not alter his rights. Id., Exh. Q at 1 & n.2. In
fact, it promised him that the classification would be used solely for its own administrative
purposes and the request would still be prioritized as though it had been received a year earlier.
Id. Given that this case was already pending by this time, an accomplished tea-leaves reader
would have been hard-pressed to divine that Defendant intended to retroactively shield from
imminent judicial review this final, outstanding portion of its tardy 2015-2053 determination.
Finally, when a defendant has made these particular representations, which reasonably would
have deterred a plaintiff from seeking administrative redress within FOIA’s attendant deadlines
for an administrative appeal, the core purposes of FOIA’s exhaustion regime would not be
advanced by allowing the agency to thus avoid judicial review entirely.
On the specific facts of this case, therefore, the agency has failed to show it has a viable
exhaustion defense to any of Wisdom’s claims. See Hidalgo, 344 F.3d at 1258-59 (explaining
FOIA exhaustion is a jurisprudential doctrine precluding review if “the purposes of exhaustion”
and the “particular administrative scheme” support such a bar). The Court, accordingly, will
address all of Plaintiff’s challenges to the agency’s responses in the sections that follow.
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B. Carilli Declarations
As mentioned above, in the FOIA context, the agency bears the burden to demonstrate
that it has conducted a reasonable search and that a claimed exemption applies to any record that
it subsequently withholds. Citizens for Responsibility & Ethics in Wash. v. Dep’t of Justice, 746
F.3d 1082, 1088 (D.C. Cir. 2014). It may carry these burdens by submitting affidavits with
“reasonably specific detail” that outline its actions and justifications, and that “are not
controverted by either contrary evidence in the record nor by evidence of agency bad faith.’” Id.
(quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)); see also Oglesby, 920
F.2d at 68 (same for search).
In accord with this practice, USTP relies on two such Declarations from Joseph Carilli, a
trial attorney in EOUST who has been responsible for its FOIA compliance efforts since
February 4, 2016. See Carilli Decl., ¶ 1. Wisdom maintains, however, that the agency cannot
rely on these particular Declarations because they violate Federal Rule of Civil Procedure Rule
56(c)(4)’s requirement that a declaration be made based upon “personal knowledge.” See Cross-
Mot. at 13. Carilli cannot possibly have such knowledge about the search and applicable
exemptions, Plaintiff asserts, as he did not take over these duties for the agency until well after
those tasks were largely completed for the FOIA requests at issue here. Id. at 13-15. Wisdom
thus asks the Court to strike most sections of these Declarations before proceeding with its
analysis. Id. at 15.
In making this argument, however, Plaintiff misconstrues what Rule 56 mandates in the
FOIA context. A FOIA declarant may satisfy that rule’s personal-knowledge requirement “‘if in
his declaration, [he] attest[s] to his personal knowledge of the procedures used in handling [a
FOIA] request and his familiarity with the documents in question.’” Madison Mech., Inc. v.
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Nat’l Aeronautics & Space Admin., No. 99–2854, 2003 WL 1477014, at *6 (D.D.C. Mar. 20,
2003) (quoting Spannaus v. Dep’t of Justice, 813 F.2d 1285, 1289 (4th Cir. 1987)); see also
Barnard v. Dep’t of Homeland Security, 531 F. Supp. 2d 131, 138 (D.D.C. 2008) (“Declarants
are not required to participate in the search for records.”). Hearsay is thus acceptable for FOIA
affidavits. SafeCard, 926 F.2d at 1201; see also Carney v. Dep’t of Justice, 19 F.3d 807, 814 (2d
Cir. 1994) (“An affidavit from an agency employee responsible for supervising a FOIA search is
all that is needed to satisfy Rule 56(e); there is no need for the agency to supply affidavits from
each individual who participated in the actual search.”).
Carilli, in this case, attests that he is responsible “for agency compliance with [FOIA]”
and has “direct involvement in the processing of responses to requests for access to [USTP]
records and information.” Carilli Decl., ¶¶ 1-2. He also explains that his statements “are based
upon my personal knowledge, upon information provided to me in my official capacity, and
upon conclusions and determinations reached and made in accordance therewith.” Id., ¶ 2. In
others words, he has based his conclusions on information provided to him by other agency
employees and his own review of agency records.
While the Carilli Declarations might have provided this necessary information in a more
direct and clear manner – e.g., by using the tried-and-true recitation of a “familiarity with the
documents in question” – the language he has used nonetheless presents a sufficient
approximation to satisfy Rule 56’s requirements here. The Court, accordingly, declines to strike
these affidavits as deficient and may now proceed to consider whether the search procedures they
describe were adequate.
17
C. Search Adequacy
“An agency fulfills its obligations under FOIA if it can demonstrate beyond material
doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-
Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of State, 897
F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C.
Cir. 1994). The adequacy of an agency’s search for documents under FOIA “is judged by a
standard of reasonableness and depends, not surprisingly, upon the facts of each case.”
Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). “When a plaintiff questions
the adequacy of the search an agency made in order to satisfy its FOIA request, the factual
question it raises is whether the search was reasonably calculated to discover the requested
documents, not whether it actually uncovered every document extant.” SafeCard, 926 F.2d at
1201. To meet its burden, the agency may thus submit affidavits or declarations that explain the
scope and method of its search “in reasonable detail.” Perry v. Block, 684 F.2d 121, 127 (D.C.
Cir. 1982). If the record, however, “leaves substantial doubt as to the sufficiency of the search,
summary judgment for the agency is not proper.” Truitt, 897 F.2d at 542.
For ease of reference, the Court takes up the adequacy of these searches – and Carilli’s
Declarations in support – in separate sections corresponding to the three request numbers.
1. 2015-2053
To remind the reader, the first request sought, from the Boise office, 15 categories of
documents related either to Wisdom’s bankruptcy or Gugino’s service as a trustee. EOUST
tasked the Assistant United States Trustee (AUST) for Region 18 with conducting a search for
these documents. See Carilli Decl., ¶ 24. The AUST then identified seven employees in the
Boise office likely to have “knowledge” of the records, including himself, trial attorneys and
18
paralegals assigned to Wisdom’s bankruptcy case, and the bankruptcy analysts assigned to
trustee oversight. Id., ¶ 26. These employees subsequently searched the Boise office’s shared
computer drive, the Region 18 shared computer drive, their own individual hard drives, and their
personal hard drives stored on the local Boise server for the terms: “Gugino,” “Wisdom,” the
relevant bankruptcy case numbers, and “blanket bond.” Id., ¶¶ 25-27. An employee also
manually searched a hard-copy trustee-oversight file, but did not search any hard copies of the
bankruptcy case files, as those were no longer located in the Boise office. Id., ¶ 27. Any
documents located in the search were then sent to EOUST for processing. Id., ¶ 28.
While the Court understands this declaration to imply that the agency strove to be
thorough in its efforts, the recounting of its search is facially flawed under this Circuit’s caselaw.
To satisfy the dictates of FOIA, Defendant must, at a minimum, “aver that it has searched all
files likely to contain relevant documents.” Am. Immigration Council v. Dep’t of Homeland
Sec., 21 F. Supp. 3d 60, 71 (D.D.C. 2014) (quoting Am. Immigration Council, 950 F. Supp. 2d at
230) (emphasis added). As the D.C. Circuit explained in Oglesby, while an agency need not
search every one of its record systems, a “reasonably detailed affidavit . . . averring that all files
likely to contain responsive materials . . . were searched[] is necessary to afford a FOIA
requester an opportunity to challenge the adequacy of the search and to allow the district court to
determine if the search was adequate in order to grant summary judgment.” 920 F.2d at 68.
Where the government, as it has here, fails to make such an attestation, courts have
typically found that an issue of material fact exists as to the adequacy of the search. In Jefferson
v. Bureau of Prisons, No. 05-848, 2006 WL 3208666 (D.D.C. Nov. 7, 2006), for example, the
court found the FBI’s search inadequate because its declaration did not “aver that the FBI
searched all files likely to contain responsive records.” Id. at *6; see also Bonaparte v. Dep’t of
19
Justice, 531 F. Supp. 2d 118, 122 (D.D.C. 2008) (same); Maydak v. Dep’t of Justice, 362 F.
Supp. 2d 316, 326 (D.D.C. 2005) (same).
Defendant, likewise, has failed to meet its burden here. In fact, USTP makes only vague
averments that it assigned the official “responsible for the maintenance of all records held in the
Boise, Idaho office” to spearhead its search, that he in turn identified “the search locations where
the records may be located,” and that his office maintained “both hard copy and electronic files
of bankruptcy case files, system of records JUSTICE/UST-001 Bankruptcy Case Files and
Associated Records and trustee oversight files, system of records JUSTICE/UST-002
Bankruptcy Trustee Oversight Records.” Carilli Decl., ¶¶ 24-26. The agency never proceeds to
declare that the AUST or other employees ultimately searched every hard copy and electronic
system that might contain responsive documents. This attestation, as a result, simply does not
pass muster. See Oglesby, 920 F.2d at 68 (finding search deficient notwithstanding agency’s
assertion that “a search was initiated of the Department record system most likely to contain the
information which had been requested”); Am. Immigration Council, 21 F. Supp. 3d at 71
(deeming declaration inadequate despite agency’s claim that it searched the offices “most likely
to possess records responsive to [Plaintiff’s] request”).
In the absence of an affidavit containing the specific declaration that the agency searched
all locations likely to contain responsive documents, the Court must conclude that a genuine
issue of material fact remains as to whether the agency conducted an adequate search in regard to
stage one of request 2015-2053.
2. 2016-2003
For largely the same reason, the agency also has not demonstrated that it adequately
searched for documents related to Wisdom’s second FOIA request, which, as a reminder, sought
20
documents pertaining to Defendant’s earlier processing of 2015-2053. This time, Carilli explains
only that “EOUST determined that the responsive records would be located in the” Boise office,
that it assigned the same AUST to conduct the search, and that he determined that the same
seven employees “had knowledge of the records requested.” Carilli Decl., ¶¶ 44-46. He then
summarily states that each of these employees “verified that the office did not have any records
responsive to the request.” Id., ¶ 46.
As should be clear, the agency must attest that it searched all of the places likely to
contain documents pertaining to Wisdom’s request. See Oglesby, 920 F.2d at 68. This time,
however, the agency is also deficient in not describing the scope and method of its search in any
sort of “reasonable detail.” Perry, 684 F.2d at 127. Indeed, no mention at all is made of what
these employees searched nor how they did so. USTP also fails to explain why it believed that
responsive documents could not be found outside the Boise office, even though Wisdom
specifically asked for communications between the Boise office and third parties. See Mot.,
Exh. V. It is logical to assume that, even if the Boise office did not maintain records of such
communications, other departments in the agency that were party to the conversations might
have done so. The record, moreover, contains no indication, as recounted above, that Wisdom
ever abandoned his request for documents located outside Boise in regard to 2016-2003.
As a result, there remains a genuine issue of material fact as to the adequacy of this
search, too.
3. 2016-2033
To complete its final search for records responsive to Wisdom’s 2015-2053 request, but
this time in locations other than the Boise office, the agency followed a similar path to that
described above. It first “determined that the responsive records may be located in the” Region
21
18 Office and EOUST Office of Oversight. See ECF No. 24-1 (Supplemental Carilli
Declaration), ¶ 15. For the documents located in the Region 18 Office, the local official in charge
of coordinating the oversight of the panel trustees “determined that any responsive documents
held [in that office] would be duplicative of the documents provided in response to EOUST FOIA
2015-2053” from the Boise office. Id., ¶ 16. The agency thus describes no search at all that took
place of records in this office. While there may be some cases where no search is necessary
because any such effort would clearly be duplicative, the agency never explains in sufficient
detail why that would be so in this instance. Suffice it to say, then, that no search of this office at
all was plainly not an adequate search here.
USTP did, however, at least conduct a search of its Office of Oversight. But, again,
Carilli merely lists a variety of hard-copy and electronic resources maintained by EOUST. See
Suppl. Carilli Decl., ¶ 18. He then states that, after reviewing the request, the official in charge of
such records “identified the search locations where the records may be located” as an office
shared drive, user home drives, and the hard-copy trustee-oversight files. Id., ¶¶ 18-19. This
official then conducted a “search” of these locations and sent the responsive documents to
EOUST officials for processing. Id., ¶¶ 20-21.
As should be obvious by now, this final search thus again fails to describe with
“reasonable detail” an effort this Court could determine “was reasonably calculated to discover
the requested documents.” SafeCard, 926 F.2d at 1201. Not only does the agency’s declaration
not assert that its methods might have been expected to turn up all relevant documents, it also
never details any search terms or methods that were used in regard to either office that was
searched. In fact, it appears that no search for any responsive documents even occurred at the
Region 18 Office, which the agency itself had determined should possess such records.
22
* * *
To sum up, the Court concludes that, for the first two FOIA requests at issue in this case,
a genuine issue of material fact exists as to whether the agency’s search for responsive
documents was adequate. While the government’s Motion as to the search fails because it has
not properly described its searches, Plaintiff’s summary-judgment Motion as to the search
likewise falls short, as it remains unclear whether the searches themselves were inadequate or
just inadequately explained by the government. USTP, accordingly, must either supply a
sufficient declaration or conduct a new search. As to the final 2016-2033 request, the Court
concludes, based on the agency’s own representations, that its search was inadequate and that
Wisdom is thus entitled to summary judgement on this limited score. In other words, EOUST
must renew its search as to these last records.
D. Exemptions
Next up are the numerous redactions made by the agency and the FOIA exemptions it
cited in justification – primarily Exemptions 5, 6, and 7(E). The Court takes up each in turn
below.
Before doing so, however, it bears noting that Plaintiff spends a good deal of time in his
Cross-Motion and Reply discussing various exemptions that the agency either did not rely on or
that he ultimately concludes he is not interested in challenging. See, e.g., Cross-Mot. at 23 (after
discussing Exemption 7(C), recognizing “Exemption 7(C) is not at issue here”). In particular, he
expressly waives any challenge to the agency’s reliance on Exemption 6 to redact direct-dial
telephone numbers for its employees and on Exemption 3 for redactions of various tax-return
documents. Id. at 25. As a result, the Court will not examine those particular withholdings.
23
1. Exemption 5
Exemption 5 applies to “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.” 5 U.S.C. §
552(b)(5). In other words, under Exemption 5, an agency may withhold from a FOIA requestor
any “documents[] normally privileged in the civil discovery context.” NLRB v. Sears, Roebuck
& Co., 421 U.S. 132, 149 (1975); see also United States v. Weber Aircraft Corp., 465 U.S. 792,
799 (1984). This exemption thus encompasses three distinct categories of information:
deliberative-process privilege, attorney-work-product privilege, and attorney-client privilege.
See Am. Immigration Council v. Dep’t of Homeland Sec., 905 F. Supp. 2d 206, 216 (D.D.C.
2012). USTP here relies only on the first two, which the Court will, yet again, address in turn.
a. Deliberative-Process Privilege
The deliberative-process privilege shields internal agency “advisory opinions,
recommendations and deliberations” in order to “protect[ ] the decision making processes of
government agencies.” Sears, Roebuck & Co., 421 U.S. at 150 (citations omitted). To qualify
under this privilege, a record must meet two requirements. First, it must be predecisional – i.e.,
“antecedent to the adoption of an agency policy.” Jordan v. Dep’t of Justice, 591 F.2d 753, 774
(D.C. Cir. 1978) (en banc) (emphasis omitted), overruled in part on other grounds, Crooker v.
Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1053 (D.C. Cir. 1981) (en banc). Even
when an agency subsequently makes a final decision on the issue discussed in the record, the
record remains predecisional if it was produced before that final decision. See Fed. Open Mkt.
Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 360 (1979). Second, a record must be
deliberative – i.e., “a direct part of the deliberative process in that it makes recommendations or
expresses opinions on legal or policy matters.” Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C.
24
Cir. 1975). “A document that does nothing more than explain an existing policy cannot be
considered deliberative.” Public Citizen, Inc. v. OMB, 598 F.3d 865, 876 (D.C. Cir. 2010).
Based on these distinctions, “Exemption 5, properly construed, calls for disclosure of all
opinions and interpretations which embody the agency’s effective law and policy, and the
withholding of all papers which reflect the agency’s group thinking in the process of working out
its policy and determining what its law shall be.” Sears, Roebuck & Co., 421 U.S. at 153
(citation and internal quotations marks omitted). A “strong theme” of this Circuit’s decisions on
the deliberative-process privilege, moreover, “has been that an agency will not be permitted to
develop a body of ‘secret law,’ used by it in the discharge of its regulatory duties and in its
dealings with the public, but hidden behind a veil of privilege because it is not designated as
‘formal,’ ‘binding,’ or ‘final.’” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 867
(D.C. Cir. 1980). In other words, an agency may not cast records as predecisional when they
actually convey what the agency’s policymakers have decided. See id. at 868 (explaining “a
document from a subordinate to a superior official is more likely to be predecisional, while a
document moving in the opposite direction is more likely to contain instructions to staff
explaining the reasons for a decision already made”).
Citing this privilege, EOUST defends its withholding of two types of intra-agency
records here. As to the first category – which contained information about how Gugino should
be evaluated as a trustee – the agency explains only that it determined these documents would
“dampen the ability of the [agency]’s employees to have open and frank discussions internally
and with the trustee regarding trustee performance.” Carilli Decl., ¶ 30. The agency does not
explain how these documents were “predecisional” or, in fact, whether they were deliberative in
25
the sense of being designed to work toward the crafting of an agency policy or action. Nor does
Defendant cite to whom or from whom these documents were sent.
Based on this scant information alone and bearing in mind “the strong policy of the FOIA
that the public is entitled to know what its government is doing and why,” the Court cannot say
that these redactions were proper. Coastal States Gas, 617 F.2d at 868; see also Mead Data
Cent., Inc. v. Dep't of Air Force, 566 F.2d 242, 258 (D.C. Cir. 1977) (“An agency cannot meet
its statutory burden of justification [under Exemption 5] by conclusory allegations of possible
harm.”). If, for example, the redacted information merely summarizes the relevant facts or
agency policies used to evaluate trustees, the privilege would not likely be justifiable here. See,
e.g., Public Citizen, 598 F.3d at 876 (“[A]gencies must disclose those portions of predecisional
and deliberative documents that contain factual information that does not inevitably reveal the
government's deliberations.”) (citation and internal quotation marks omitted). Indeed, at least
one of the withheld pages, which Plaintiff has provided, appears to be a performance review of
Gugino. See Cross-Mot., Exh. J at 9. Several courts have found that such reviews are not
deliberative, though they may be predecisional, and thus not subject to the deliberative-process
privilege. See, e.g., McGrady v. Mabus, 635 F. Supp. 2d 6, 18-19 (D.D.C. 2009); see also
Cowdery, Ecker & Murphy, LLC v. Dep’t of Interior, 511 F. Supp. 2d 215, 218-20 (D. Conn.
2007). The agency provides no reason here to think its evaluation is somehow different. As a
result, it has not met its burden to justify these withholdings.
The agency’s defense of its second set of deliberative-process redactions fares little
better. This time, the agency states vaguely that the withheld documents contain discussions
about how the Trustee should handle complaints being made by the public about Gugino’s
demeanor. See Carilli Decl., ¶ 29. Again, no mention is made about to whom or from whom the
26
documents were sent. Id. No further description, in fact, is provided except this brief statement.
Should the documents direct a formal agency policy from a supervisor to an inferior about what
should be done to respond to these complaints, the privilege would not likely shield the records
from disclosure. Public Citizen, 598 F.3d at 876 (“Only those portions of a predecisional
document that reflect the give and take of the deliberative process may be withheld.”). The
Court here again simply lacks a sufficient description of these documents to rule out such a
possibility. While at least some of the redacted documents provided by Wisdom appear to
contain the requisite sort of back-and-forth characteristic of agency deliberations, see, e.g.,
Wisdom Decl., Exh. C at 49-51, without knowing the identity of the authors, the Court cannot so
assume.
The agency, moreover, wholly fails to discuss in its declarations another page that it
describes in its Vaughn Index – an index provided by the agency that catalogues all of the
records released and the cited exemptions – as being redacted pursuant to Exemption 5 and
containing “information . . . regarding the status of the relationship between panel trustees and
bankruptcy judges.” Mot., Exh. X at 1 (referring to p.17); see also Vaughn v. Rosen, 484 F.2d
820, 827 (D.C. Cir. 1973) (describing use of index to itemize and describe FOIA records during
litigation). There is no reason to believe, based on this description alone, that these documents
would be entitled to withholding under the deliberative-process exemption. The same is true of
another set of redactions that the agency describes – again, only in its Vaughn Index – as
pertaining to communications about the “trustee’s field exam.” See, e.g., Mot., Exh. Z at 2
(referring to pp. 28-38, 41-44). If anything, these documents seem to be either purely descriptive
of policy or otherwise factual in nature, and not related to any particular agency-deliberative
process.
27
The Court thus holds that Defendant has not demonstrated at this stage that it can
withhold any of the documents for which it cited Exemption 5’s deliberative-process privilege.
b. Attorney-Work-Product Privilege
“The attorney work-product [prong of Exemption 5] protects ‘documents and tangible
things that are prepared in anticipation of litigation or for trial’ by an attorney.” Am.
Immigration Council v. DHS, 905 F. Supp. 2d 206, 221 (D.D.C. 2012) (quoting Fed. R. Civ. P.
26(b)(3)). As this Court has noted in the past, the work-product privilege is relatively broad,
encompassing documents prepared for litigation that is “foreseeable” even if not necessarily
imminent. Id. The privilege, however, is not boundless. No doubt potential “future litigation
touches virtually any object of a[n agency] attorney’s attention,” but “if the agency were allowed
‘to withhold any document prepared by any person in the Government with a law degree simply
because litigation might someday occur, the policies of the FOIA would largely be defeated.’”
Senate of Puerto Rico v. Dep’t of Justice, 823 F.2d 574, 586-87 (D.C. Cir. 1987) (quoting
Coastal States Gas, 617 F.2d at 865).
When reviewing a withholding under the work-product privilege, the D.C. Circuit
employs a because-of test, inquiring “whether, in light of the nature of the document and the
factual situation in the particular case, the document can fairly be said to have been prepared or
obtained because of the prospect of litigation.” FTC v. Boehringer Ingelheim Pharms. Inc., 778
F.3d 142, 149 (D.C. Cir. 2015) (quoting United States v. Deloitte LLP, 610 F.3d 129, 137 (D.C.
Cir. 2010)). Where a document would have been created “in substantially similar form”
regardless of the litigation, work-product protection is not available. See Deloitte, 610 F.3d at
138 (quoting United States v. Adlman, 134 F.3d 1194, 1195 (2d Cir. 1998)). This means that
USTP here must at least demonstrate that the lawyer who prepared these documents possessed
28
the “subjective belief that litigation was a real possibility, and that belief must have been
objectively reasonable.” In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998). For the
government to discharge its evidentiary burden under this test, it generally must provide a
description of the contents of the withheld document – which typically includes the document’s
author and the circumstances surrounding its creation – and provide some indication of the type
of litigation for which the document’s use is at least foreseeable. See Ellis v. Dep’t of Justice,
110 F. Supp. 3d 99, 108 (D.D.C. 2015).
Defendant here redacted documents that it claims were “prepared by an attorney or at the
direction of an attorney in connection with a possible administrative action against the Trustee”
under 28 C.F.R. § 58.6 or during litigation in a bankruptcy case. See Carilli Decl, ¶¶ 29-30;
Suppl. Carilli Decl., ¶¶ 22-23. Full stop. The agency says nothing more about who prepared the
documents or what content they contain. Id. Nor does it clarify against whom it thought such
litigation might occur or on what basis, though one might guess that it is referring to Gugino as
the “Trustee” and, possibly, to Wisdom’s bankruptcy case. Id. The agency thus has failed to
meet its burden to justify any of these redactions through an adequately descriptive affidavit.
See Ellis, 110 F. Supp. 3d at 108.
While USTP seeks in its brief to supplement this sparse description, such further
elaboration is insufficient at the summary-judgment stage to meet the government’s evidentiary
burden. Military Audit Project, 656 F.2d at 738. These additional facts, likewise, would only
reiterate that the records might have been prepared by an attorney in anticipation of a possible
administrative proceeding to remove a trustee (again, Gugino is not mentioned by name) based
on complaints about his demeanor. See Mot. at 23-24. The agency makes no further mention
29
about who might have prepared the documents (or her position), nor does it provide any further
description of their content. Id.
A sampling of the documents provided by Wisdom also reveals that at least some of the
redactions made on this ground by the agency appear to be improper. For example, EOUST
cited this exemption to justify redactions contained in a field report of Gugino that was
conducted by a bankruptcy analyst for the apparently routine purpose of evaluating his general
performance. See Wisdom Decl., Exh. C at 28-38. In another instance, the agency redacted an
entire page of comments that appear to be observations written down by the Assistant United
States Trustee (AUST) who was observing Gugino in court on April 22, 2013. Id. at 52. The
Court cannot ascertain at this point how such routine audits of workplace performance could be
considered as produced at the behest of an attorney in preparation of litigation. Put simply, these
are not the sort of documents that would ordinarily be protected by the privilege.
The Court, consequently, must conclude that a genuine issue of material fact remains as
to whether the government properly withheld any records under Exemption 5’s attorney-work-
product privilege.
2. Exemption 6
Plaintiff next argues that Defendant improperly redacted three other categories of
information under Exemption 6. See Cross-Mot. at 25. To qualify for this exemption, the
agency must show that the following criteria are met: first, the information must be contained
within “personnel and medical files and similar files”; second, the disclosure of the information
“must constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6); see
also Am. Immigration Lawyers Ass’n v. Exec. Office for Immigration Review, 830 F.3d 667,
673 (D.C. Cir. 2016). A court thus “generally follow[s] a two-step process when considering
30
withholdings or redactions under Exemption 6.” Am. Immigration Lawyers, 830 F.3d at 673. It
must first “determine whether the [records] are personnel, medical or ‘similar’ files covered by
Exemption 6.” Id. (quoting Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1228 (D.C.
Cir. 2008)). Then, if “the records are covered by the exemption, [the court must] determine
whether their disclosure would constitute a clearly unwarranted invasion of personal privacy.”
Id. Within this latter step, as well, there is another “another two-step process.” Id. (internal
quotation marks omitted). This time, the Court must first determine that “disclosure would
compromise a substantial, as opposed to a de minimis, privacy interest.” Id. at 674 (quoting
Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 33 (D.C. Cir. 2002)). If it does, the Court
then “weigh[s] the privacy interest at stake ‘against the public interest in the release of the
records.’” Id.
Each of the three categories of information for which the government relied on this
exemption – names and personal information of various individuals, Gugino’s trustee
evaluations, and other trustees’ performance reviews – are discussed separately using this
formula.
a. Names and Personal Information
The first bundle of Exemption 6 redactions consists of the names of individuals who
complained to the agency about Gugino’s demeanor, various names of debtors who appear in
those complaints, and similar identifying information contained in other documents produced by
Gugino about related bankruptcy negotiations with these private citizens. See Mot. at 25, Exhs.
X, Y, Z (2015-2053 Vaughn Indices); Opp., Exh. K (2016-2033 Vaughn Index). With scant
explanation, Wisdom claims that none of this information was properly withheld by the agency
under this exemption, but, at each step of the multi-pronged analysis, his argument falls flat.
31
Starting at step one, Wisdom maintains that these records do not satisfy the Exemption 6
test as they are not found in “personnel or medical files.” But, in making this statement, he
seems to overlook the fact that this exemption also covers files and information “similar” to
personnel records. See 5 U.S.C. § 552(b)(6). Relying on this language, courts have routinely
held that government files consisting of private pieces of information similar to what might be
contained in a personnel file sufficiently fit the “similar files” bill, including the type of names
and bank-account numbers that the government withheld here. Judicial Watch, Inc. v. FDA, 449
F.3d 141, 152-53 (D.C. Cir. 2006) (“We have also read the statute to exempt not just files, but
also bits of personal information, such as names and addresses, the release of which would
‘create[] a palpable threat to privacy.’”) (quoting Carter v. Dep’t of Commerce, 830 F.2d 388,
391 (D.C. Cir. 1987)); see Am. Immigration Lawyers, 830 F.3d at 673 (concluding names of
complainants who filed against immigration judges were protected); see also Dep’t of Def. v.
FLRA, 510 U.S. 487, 495-96 (1994) (holding Exemption 6’s purpose “not fostered by the
disclosure of information about private citizens that is accumulated in various government files
but that reveals little or nothing about an agency’s own conduct”) (quoting Reporters Comm.,
489 U.S. at 775). The Court thus concludes that the first prong is satisfied.
It next considers whether the individual complainants and debtors have a substantial
privacy interest in the withholding of their identities. According to Wisdom, they do not, as any
such interest was “extinguished with the filing” of their complaints or bankruptcy proceedings.
See Cross-Mot. at 24-25. In essence, he seems to believe that because the information on who is
going through bankruptcy proceedings is publicly available elsewhere, the complainants and
debtors have no further privacy interest in the withholding of their names or personal information
in the context of these complaints or catalogues of their disagreements with Gugino. Id.
32
This is incorrect. As the D.C. Circuit has indicated, even where such identifying
information is otherwise available in public records, individuals may still retain a privacy interest
in avoiding the association of their names with complaints or other disciplinary actions. See Am.
Immigration Lawyers, 830 F.3d at 674; see also Dep’t of State v. Wash. Post Co., 456 U.S. 595,
600 (1982) (“Information such as place of birth, date of birth, date of marriage, employment
history, and comparable data is not normally regarded as highly personal, and yet . . . such
information . . . would be exempt from any disclosure that would constitute a clearly
unwarranted invasion of personal privacy.”). The second prong of the Exemption 6 analysis, as a
result, is clearly satisfied with regard to these names. The debtors who privately made these
complaints about Gugino to the agency may very well wish to remain indistinguishable from the
other debtors for whom Gugino served as a private trustee during the same timeframe. This is
particularly so because the substance of their complaints and conflicts with him have already
been released in what the agency did disclose, many records of which contain very personal
details about their disagreements with the trustee and other personal hardships. The same is true
of the other names redacted – for instance, in documents that Gugino prepared to defend himself
against their accusations. See, e.g., Cross Mot., Exh. A (First 2015-2053 Release) at 56-57.
Regardless of what information these individuals may have been forced to make public in their
bankruptcy proceedings, they maintain a continued privacy interest in staying unconnected to
these particular records.
The court must still, of course, proceed to the final step of its analysis as “[t]he statute
does not categorically exempt individuals’ identities” given that “the ‘privacy interest at stake
may vary depending on the context in which it is asserted.’” Judicial Watch, 449 F.3d at 153
(quoting Armstrong v. Exec. Office of the President, 97 F.3d 575, 582 (D.C. Cir. 1996)). To
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determine whether the agency “appropriately withheld these names” here, the Court must
“‘balance the private interest involved . . . against the public interest . . . [in] open[ing] agency
action to the light of public scrutiny.’” Id. (internal quotation marks omitted) (quoting Horowitz
v. Peace Corps, 428 F.3d 271, 278 (D.C. Cir. 2005)).
On this final score, the government convincingly argues that the release of these records’
substance fully satisfies the public interest in them, and no other gain could be had by the further
disclosure of these individual names or related personal data. See Mot. at 25-27. As it notes, the
exposure of this identifying information could subject the individuals involved to “unnecessary
public attention, harassment, or embarrassment” and stymie the government’s efforts to obtain
candid information about the performance of its trustees from such parties in the future. See
Carilli Decl., ¶ 33. Indeed, courts have routinely upheld the withholding of complainants’ names
on similar rationales. See, e.g., Lakin Law Firm, P.C. v. FTC, 352 F.3d 1122, 1125 (7th Cir.
2003).
Wisdom also fails, for his part, to identify any public interest that might be furthered by
the release of these names. See Carter, 830 F.2d at 390 n.8, 391 n.13 (explaining requestor bears
burden of identifying public interest in disclosure). He postulates vaguely that identification of
these individuals might contribute to the public’s understanding of the operations or activities of
the government, but never explains why the identification of the particular private citizens
involved in these events would do so. See Cross-Mot. at 24-25. He also contends that the
government’s withholding of the names is intended to “shield Gugino from embarrassment” and
to cover up the agency’s “lax oversight” of the trustee’s performance, see id. at 25, but, again,
the Court is at a loss as to how the withholding of these names themselves might further aid such
purported nefarious objectives on the agency’s part, given that it has already released the
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substance of the underlying complaints. A review of the documents at issue, in fact, confirms
that, for this particular category of data, the agency carefully extracted just the identifying names
and personal information of these individuals, but otherwise left intact the entirety of the records’
documentation of Gugino’s actions as a trustee. See id., Exh. A (First 2015-2053 Release), Exh.
B (Second 2015-2053 Release), Exh. C (Third 2015-2053 Release).
As a result, the Court will grant Defendant partial summary judgment as to the
withholding of these names and personal data.
b. Gugino’s Performance Evaluations
The second category of Exemption 6 redactions made by USTP involved either Gugino’s
performance reviews or files prepared for the purpose of evaluating his work as a trustee, most
notably his field examinations. See Mot. at 27-29. Wisdom protests that these records did not
meet any of the requirements for withholding under this exemption. As before, he is largely
incorrect. This time around, though, he has shown that there is a credible argument that the
public interest in at least some of this information might outweigh the privacy interests at stake,
and the Court will thus order the government to produce these documents for review in camera.
The first two steps of the Exemption 6 analysis are again relatively straightforward.
Although Wisdom claims that these are not personnel files because Gugino is not a government
employee, the discussion above makes clear that this distinction does not matter since the
information redacted is still of the type protected in “similar files.” Rose, 425 U.S. at 377
(describing “evaluations of his work performance” as “the kind of profile of an individual
ordinarily to be found in his personnel file”); Smith v. Dep’t of Labor, 798 F. Supp. 2d 274, 284
(D.D.C. 2011) (holding “[p]erformance appraisals are precisely the sort of information found in
protected personnel files”). Prong one is thus satisfied.
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As to prong two, a person has a substantial privacy interest in a supervisor’s candid
evaluation of his performance. See Ripskis v. HUD, 746 F.2d 1, 3 (D.C. Cir. 1984) (holding
individuals have substantial privacy interest in performance evaluations); see also FLRA v.
Dep’t of Commerce, 962 F.2d 1055, 1059-61 (D.C. Cir. 1992) (affirming withholding of
employee performance appraisals as “intensely personal”); Barvick v. Cisneros, 941 F. Supp.
1015, 1020-21 (D. Kan. 1996) (finding privacy interest in personal information such as home
addresses and telephone numbers, social-security numbers, and performance appraisals).
Although Wisdom argues that Gugino is a mere service provider, rather than a government
employee, this is neither here nor there. The fact is that these records contain evaluations of his
work performance by his supervisor, which were created and held by the government. See
Celmins v. Dep’t of Treasury, 457 F. Supp. 13, 15 (D.D.C. 1977) (“[E]valuation of an
individual’s work performance, even if favorable, is personal information.”). There can be little
doubt given the number of complaints about Gugino’s demeanor, moreover, that many of the
records might contain information that would be personally embarrassing to him.
Having found that Defendant has satisfied the first two Exemption 6 requirements, the
Court must now weigh the public interest in disclosure against this recognized privacy interest.
The only valid public interest, in this FOIA context, is one that serves the statute’s core purpose
of shedding light on an agency’s performance of its statutory duties. See Reporters Comm., 489
U.S. at 773. A requester can generally satisfy his burden to demonstrate such an interest where
he can show that disclosure would serve to “check against corruption and to hold the governors
accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).
In this case, Wisdom makes a substantial argument that Gugino’s performance
evaluations could at least marginally advance the public interest in shedding light on some form
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of misconduct by a trustee and the government’s response thereto. As the information turned
over in several of the other records reveals here, multiple individuals and attorneys complained
to USTP about Gugino’s dismissive and demeaning behavior toward debtors and other
professionals with whom he worked during his time as a trustee. Wisdom is also surely correct
that Gugino, as a trustee, wielded an enormous amount of official power over certain citizens,
and, should that authority have been abused, the public has a clear interest in knowing how the
government responded – to investigate and, if substantiated, to squelch such behavior.
Presumably, at least some of these evaluations thus would contain further information shedding
light on how the government reacted to potential abuse-of-power accusations lodged against a
person holding significant government authority. In light of evidence of potential wrongdoing
by high-ranking government officials, moreover, some courts have required the release of
performance evaluations despite the privacy interests at stake, as the agency here readily
concedes. See, e.g., Cowdery, Ecker & Murphy, LLC v. Dep’t of the Interior, 511 F. Supp. 2d
215, 217-20 (D. Conn. 2007).
On the other side of the ledger, there is no evidence at this point, despite Wisdom’s
claims to the contrary, of widespread abuses by any other private trustees or, indeed, serious
abuses of his authority by Gugino in particular. The complaints against Gugino focus on his
potentially surly, unprofessional, and combative interpersonal style, as well as an occasional
misstep in the dispensation of his duties. It is also likely the case that, as the government further
contends, the disclosure of his evaluations will dampen the ability of supervisors to candidly
evaluate other trustees’ performance and, as a result, somewhat inhibit the ability of the
government to effectively supervise them. Finally, the urgency to uncover these records is
somewhat diminished by the fact that Gugino has resigned from his post. See Carilli Decl., ¶ 34.
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Given the legitimate arguments both in favor of and against disclosure of at least some of
the information contained in these documents, the Court will review these particular records in
camera to resolve the competing interests. Until such resolution, there remains a genuine issue
of material fact as to whether Exemption 6 justifies their non-disclosure.
c. Other Trustee Performance Evaluations
The same cannot be said about the performance evaluations of other trustees, which
USTP also withheld on the same ground as Gugino’s reviews. These documents, for the reasons
already listed, plainly meet the first and second prongs of the Exemption 6 analysis. Absent any
evidence of widespread wrongdoing by these trustees, though, Wisdom has failed to identify any
potential public interest in their disclosure. The Court thus concludes that USTP has sufficiently
met its burden with regard to withholding these documents and, accordingly, grants Defendant
partial summary judgment on this claim.
* * *
To recapitulate, the Court holds that the government is entitled to partial summary
judgment as to its Exemption 6 redactions of personal identifying information and trustee
performance evaluations, except for Gugino’s, which the Court will order the government to
produce for in camera review.
3. Exemption 7(E)
And then there was one. Citing Exemption 7(E), USTP redacted two pieces of
information from the records that it turned over to Wisdom. See Mot., Exhs. Y & Z. Exemption
7 authorizes the government to withhold “records or information compiled for law-enforcement
purposes, but only to the extent that the production of such law enforcement records or
information” meets one of six requirements. See 5 U.S.C. § 552(b)(7); see also Keys v. Dep’t of
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Justice, 830 F.2d 337, 340 (D.C. Cir. 1987) (“[Exemption 7] exempts such documents from
disclosure only to the extent that production of the information might be expected to produce one
of six specified harms.”). The fifth category – 7(E) – permits withholding if production “would
disclose techniques and procedures for law enforcement investigations or prosecutions, or would
disclose guidelines for law enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). In order to
properly invoke Exemption 7(E), then, the agency must satisfy two requirements: First, the
record or information must be compiled for law-enforcement purposes; and second, production
must disclose either techniques and procedures for law-enforcement investigations, or guidelines
for law-enforcement investigations, that would risk circumvention of the law. Blackwell v. FBI,
646 F.3d 37, 40, 42 (D.C. Cir. 2011).
Defendant contends that the information it redacted in this case satisfies these
requirements because it involves USTP’s statutory duty to alert the appropriate United States
Attorney to “any occurrence that might be criminal in nature.” Mot. at 29-30 (citing 28 U.S.C.
§ 586(a)(3)(F)). According to the Carilli Declaration, the government made over 2,000 such
referrals in 2015 alone, and the information that it redacted would reveal its techniques and
procedures for detecting such illegal activity. See Carilli Decl., ¶ 37. Should the information
that “suggests or forms the basis for identifying suspected fraud or abuse within or relating to
bankruptcy” be made public, the government fears that bankruptcy filers would then be able to
modify their activities to avoid detection and circumvent these laws. Id.
Wisdom, for his part, protests only that Defendant “has made no showing that the
application of Exemption 7(E) would risk a ‘circumvention of law’” or would disclose any
“‘techniques or procedures for law enforcement investigations or prosecutions.’” Cross-Mot. at
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28. The Court, after reviewing the redacted documents attached as an exhibit to his Cross-
Motion, disagrees. See Second 2015-2053 Release at 2-3; Third 2015-2053 Release at 150-51.
As to the first redaction, it appears to contain only a single line or two of information about a
potential criminal concern related to one of Wisdom’s own holdings, which Gugino appears to
have referred to an AUST for investigation. See Second 2015-2053 Release at 2-3. The second
of the redacted emails likewise seems to discuss a referral of a certain application fee to an
AUSA or AUST for investigation, though the amount of the fee has been redacted. See Third
2015-2053 Release at 150-51. Both of the redactions thus implicate the agency’s procedures for
identifying fraud and, if revealed, would help debtors avoid the sort of conduct that the agency
looks for in flagging potential criminal acts. Given the “relatively low bar” required to make this
showing, moreover, the Court concludes that the agency has “‘demonstrate[d] logically how the
release of the requested information might create a risk of circumvention of the law.’”
Blackwell, 646 F.3d at 42 (quoting Mayer Brown LLP v. UPS, 562 F.3d 1190, 1193 (D.C. Cir.
2009)). It need do no more with regard to this prong of the analysis. Id.
The problem with the government’s representations here, instead, goes to the first
requirement of Exemption 7 – i.e., that the records or information withheld be compiled for law-
enforcement purposes. Summers v. Dep’t of Justice, 140 F.3d 1077, 1083 (D.C. Cir. 1998) (“At
the very threshold of section 7 exemption, the government must show that the withheld material
consists of “‘records or information compiled for law enforcement purposes.’”). On this score,
USTP makes no showing at all. While one set of documents appears to meet this standard – as it
is a referral to a government attorney for investigation, see Third 2015-2053 Release at 150-51 –
the other appears to be contained in Gugino’s emailed defense of himself in regard to a
complaint made against him by the public. See Second 2015-2053 Release at 2-3. At least as to
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the latter, there seems to be no law-enforcement purpose undergirding the government’s
compilation or retention of the information, or none that Defendant has yet identified.
The Court thus finds that the government has failed to meet its burden for summary
judgment as to Exemption 7(E) as well.
E. Segregability
In the home stretch, Plaintiff argues, in rather cursory fashion, that Defendant failed to
properly separate out information that could be disclosed from that which it lawfully withheld
under the exemptions described above.
FOIA, indeed, requires that any such “reasonably segregable portion of a record shall be
provided to any person requesting such record after the deletion of the portions which are
exempt.” 5 U.S.C. § 552(b). While the Government is “entitled to a presumption that [it]
complied with the obligation to disclose reasonably segregable material,” Hodge v. FBI, 703
F.3d 575, 582 (D.C. Cir. 2013) (quoting Sussman v. U.S. Marshals Service, 494 F.3d 1106, 1117
(D.C. Cir. 2007)), this presumption of compliance does not obviate its obligation to carry its
evidentiary burden and fully explain its decisions on segregability. See Mead Data Cent., Inc. v.
Dep’t of Air Force, 566 F.2d 242, 261-62 (D.C. Cir. 1977). To do so, the agency must provide
“a ‘detailed justification’ and not just ‘conclusory statements’ to demonstrate that all reasonably
segregable information has been released.” Valfells v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C.
2010); see also Armstrong, 97 F.3d at 578 (determining government affidavits explained
nonsegregability of documents with “reasonable specificity”). “Reasonable specificity” can be
established through a “combination of the Vaughn index and [agency] affidavits.” Johnson v.
Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002).
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The Court need only consider at this stage whether the government has met this burden in
relation to those records upon which it has been granted partial summary judgment above, as the
agency will need to review and justify its work with regard to its other withholdings in a new
round of briefing. Looking only to those Exemption 6 redactions, then, the Court finds that the
agency has indeed met its segregability obligations under FOIA. As detailed in the Carilli
Declarations and the accompanying Vaughn Indices itemizing each redaction made to the
personal data and trustee performance evaluations (except Gugino’s), the agency has shown that
it went line-by-line to determine whether any of the information contained therein was subject to
the cited exemption. See Carilli Decl., ¶¶ 39, 47-48; Suppl. Carilli Decl., ¶ 29, 31-32. For any
portion that was redacted, moreover, the agency has provided a specific claimed exemption
detailing the information withheld and the reason that it felt such a redaction was justified under
the statute. See 2015-2053 Vaughn Indices; 2016-2033 Vaughn Index. In each case, the
information redacted is either minimal, such as a name, or wholly within the protection of the
applicable exemption, such as a part of the performance evaluation.
Defendant is thus entitled to partial summary judgment on this issue to the extent that it
implicates the aforementioned records. The Court may, however, examine a renewed
segregability claim by Wisdom as to the other documents at issue once the agency has reviewed
its withholdings and provided further justification for those redactions.
IV. Conclusion
For the reasons stated above, the Court will issue a contemporaneous Order granting
partial summary judgment to Defendant, pursuant to Exemption 6, as to the withholdings that it
made of personal information for various complainants and debtors, as well as to the
performance evaluations of trustees other than Gugino. The Court will also grant partial
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summary judgment to Wisdom as to the search related to inquiry 2016-2033, meaning Defendant
must conduct a new search. A genuine issue of material fact otherwise exists as to the adequacy
of the other searches the government conducted, so USTP will either have to explain them in
more detail or renew the search process. Similarly, the government must offer further detail to
support its cited exemptions or turn over more material. The Court will also require that the
agency produce Gugino’s performance evaluations for in camera review.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: January 13, 2017
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