Bernegger v. Executive Office for United States Attorneys ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PETER BERNEGGER,
Plaintiff,
v.
Civil Action No. 17-563 (RDM)
EXECUTIVE OFFICE FOR UNITED
STATES ATTORNEYS,
Defendant.
MEMORANDUM OPINION AND ORDER
Peter Bernegger was convicted of mail and bank fraud in 2009 in the U.S. District Court
for the Northern District of Mississippi. Since then, he has filed a number of lawsuits against
individuals involved in his criminal case, alleging that they engaged in various forms of
misconduct. In support of this effort, Bernegger submitted a Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, and Privacy Act, 5 U.S.C. § 552a, request to the Executive Office for
United States Attorneys (“EOUSA”), seeking electronic communications to or from three
Assistant United States Attorneys (“AUSAs”) or “their legal secretaries” between the dates of
March 1, 2007 and August 15, 2016, containing any reference to him, his case, or any of a list of
individuals involved in his case. Dkt. 1; Dkt. 11; Dkt. 22-2 at 2–4 (Def.’s SUMF ¶ 6). When
EOUSA failed to release the records he sought, Bernegger filed this suit to compel it to do so.
Although EOUSA eventually released hundreds of responsive records in full or with redactions,
Bernegger remains unsatisfied and asks the Court to compel EOUSA to release all of the records
he sought in full.
The case is now before the Court on the parties’ cross-motions for summary judgment
and Bernegger’s motion for discovery. For the reasons explained below, the Court will GRANT
in part and DENY in part EOUSA’s motion for summary judgment, Dkt. 22, will DENY
Bernegger’s motion for partial summary judgment, Dkt. 29, and will DENY Bernegger’s motion
for discovery, Dkt. 30.
I. BACKGROUND
Plaintiff Peter Bernegger was convicted in 2009 of mail and bank fraud. United States v.
Bernegger, 661 F.3d 232, 234–36 (5th Cir. 2011); Bernegger v. United States, No. 1:07CR176,
2015 WL 1013857, at *1 (N.D. Miss. Mar. 9, 2015). After he was convicted, Bernegger filed
multiple lawsuits seeking to expose the “corrupt[ion],” “misconduct,” “fraud,” and “lies” of
nearly 20 people involved in his criminal case, including judges, judicial staff, state officials, and
prosecutors. In re Bernegger, No. 3:15CV182, 2015 WL 8347587, at *8–10 (N.D. Miss. Dec. 8,
2018). Bernegger’s actions reached the point that, in 2015, a district court in the Northern
District of Mississippi determined that it was necessary to “impose a sanction designed to curb
Mr. Bernegger’s penchant for abusing judicial process by filing frivolous and malicious
pleadings, motions, and communications with the court,” and thus required that he submit any
future cases he wishes to file to the Chief Judge for screening. Id. at *11–12.
On August 13, 2016, Bernegger submitted a FOIA and Privacy Act request to EOUSA,
seeking “all emails and/or other electronic communications of AUSA Robert J. Mims, AUSA
Clyde McGee, AUSA David Sanders . . . and of their legal secretaries” that referred to him, his
criminal case or case number, or a list of lawyers, court personnel, and others. Dkt. 22-3 at 27–
28 (Stone Decl. Ex. B). He specified, moreover, that his request was intended to cover the
period from March 1, 2007 through August 15, 2016. Id. at 28 (Stone Decl. Ex. B). Bernegger
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later expanded his request to include emails to or from a probation officer in the Northern
District of Mississippi. Id. at 32 (Stone Decl. Ex. C). On November 1, EOUSA sent Bernegger
a letter acknowledging receipt of his request and informing him that his request, like all others,
would be processed on a “first in, first out” basis. Id. at 38 (Stone Decl. Ex. D). On March 13,
2017, EOUSA sent Bernegger a second letter—this time informing him that “[t]he FOIA point of
contact for the [U.S. Attorney’s Office for the] Northern District of Missouri” had begun the
process of searching for responsive records and “estimate[d] [that] approximately 1,375 pages of
potentially responsive records [had] been located.” Id. at 41 (Stone Decl. Ex. E). The letter also
asked that Bernegger agree to the estimated duplication fee associated with his request. Id. at 43
(Stone Decl. Ex. E).
On March 29, 2017, Bernegger filed this suit to compel EOUSA to release all records
responsive to his request. See Dkt. 1. Between August 2017 and December 2017, EOUSA
released to Bernegger 72 pages of records in full and 88 pages of records in part, withholding
130 pages of records in full. Dkt. 22-3 at 4 (Stone Decl. ¶¶ 12, 14–15). EOUSA also referred
certain records to the Internal Revenue Service (“IRS”) and the Federal Bureau of Investigation
(“FBI”) to review, “since the records originated with those agencies.” Id. at 4 (Stone Decl. ¶ 12).
The IRS released all the records that were referred to it, id. at 50 (Stone Decl. Ex. J), while the
FBI released 8 pages in full, 11 pages in part, and withheld in full 77 pages of records, Dkt. 22-5
at 2–3 (Hardy Decl. ¶¶ 4, 8). Bernegger does not challenge the FBI’s decision to withhold any of
these records in whole or in part, nor does he claim that the IRS has failed to release any
responsive records. Dkt. 31 at 8.
EOUSA has now moved for summary judgment, submitting that it has conducted an
adequate search and that its withholdings and redactions were justified under FOIA and the
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Privacy Act. Dkt. 22. EOUSA supports its motion with the declarations of Princina Stone, an
Attorney-Advisor with the FOIA staff of EOUSA, Dkt. 22-3 at 1 (Stone Decl. ¶ 1); Brenda Gill,
the FOIA Point of Contact for the United States Attorney’s Office for the Northern District of
Mississippi during the time Bernegger submitted his FOIA request, Dkt. 22-4 at 1 (Gill Decl.
¶ 1); and David Hardy, Section Chief of the Record/Information Dissemination Section of the
Records Management Division with the FBI, Dkt. 22-5 at 1 (Hardy Decl. ¶ 1).
Bernegger opposes EOUSA’s motion on numerous grounds. He challenges the adequacy
of EOUSA’s search and all of its withholdings and redactions, arguing—among other things—
that there is a discrepancy between the number of pages of records that it originally found and
the number of pages it has subsequently accounted for; that EOUSA’s declarations are not based
on personal knowledge and are thus invalid; that it failed to conduct an adequate search and
improperly invoked various FOIA exemptions; and that the government’s “bad faith” precludes
EOUSA from withholding any responsive records in whole or in part. Dkt. 31. Moreover,
relying on the same arguments, Bernegger argues that he is entitled to the entry of “partial
summary judgment” in his favor, Dkt. 29, or, in the alternative, to discovery, Dkt. 30.
II. LEGAL STANDARD
The Freedom of Information Act is premised on the notion that “an informed citizenry is
“vital to the functioning of a democratic society . . . [and] needed 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). The Act embodies a “general philosophy of full agency disclosure.” U.S.
Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 494 (1994) (quoting Dep’t of Air
Force v. Rose, 425 U.S. 352, 360 (1976)). It thus mandates that an agency disclose records on
request unless they fall within one of nine exemptions. “These exemptions are ‘explicitly made
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exclusive’ and must be ‘narrowly construed.’” Milner v. Dep’t of Navy, 562 U.S. 562, 565
(2011) (quoting EPA v. Mink, 410 U.S. 73, 79 (1973), and FBI v. Abramson, 456 U.S. 615, 630
(1982)).
FOIA cases are typically resolved on motions for summary judgment under Federal Rule
of Civil Procedure 56. See Beltranena v. U.S. Dep’t of State, 821 F. Supp. 2d 167, 175 (D.D.C.
2011). To prevail on a summary judgment motion, the moving party must demonstrate that there
are no genuine issues of material fact and that he or she is entitled to judgment as a matter of
law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). In a FOIA action, the agency
may meet its burden by submitting “relatively detailed and non-conclusory” affidavits or
declarations, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and an index
of the information withheld, Vaughn v. Rosen, 484 F.2d 820, 827–28 (D.C. Cir. 1973); Summers
v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). An agency “is entitled to summary
judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls
within the class requested either has been produced . . . or is wholly exempt from the [FOIA’s]
inspection requirements.’” Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C.
Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)). The Court reviews the
agency’s decision de novo, and the agency bears the burden of sustaining its action. 5 U.S.C.
§ 552(a)(4)(B).
III. ANALYSIS
Bernegger’s principal contentions fall into four categories: First, he claims that
EOUSA’s own estimation of the number of pages of potentially responsive records shows that it
has failed to release hundreds of pages of records. Second, he argues that neither of the
declarations that EOUSA relies upon in its motion were based on personal knowledge, and thus
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neither can support the entry of summary judgment. Third, he contends that EOUSA’s search
for responsive records was inadequate in various respects. Fourth, he challenges EOUSA’s
reliance on the asserted FOIA exemptions and argues that the government’s “bad faith” vitiates
any defense to release of all of the records sought in his FOIA request. The Court will consider
each set of arguments in turn.
A. “Missing” Records
Bernegger first argues that he is entitled to the release of 540 records that were not
released, listed in EOUSA’s Vaughn index, or otherwise identified as exempt from disclosure.
Dkt. 31 at 9–12. He apparently derives this number of “missing” records by starting with the
assertion in EOUSA’s March 13, 2017 letter, in which it asserted that the FOIA “point of
contact” for the U.S. Attorney’s Office in the Northern District of Mississippi “estimate[d]” that
“approximately 1,375 pages of potentially responsive records [had] been located.” Dkt. 22-3 at
41 (Stone Decl. Ex. E). Bernegger then subtracted from 1,375 the number of pages of records
that EOUSA eventually released, identified in its Vaughn index, or identified as duplicates, and
arrived at the conclusion that 540 “records” are “missing.” See Dkt. 31 at 9–10. The Court is
unpersuaded.
To start, EOUSA’s March 13, 2017 letter never states that the U.S. Attorney’s Office had
identified 1,375 responsive records. Rather, it merely “estimate[d]” that it had located 1,375
“pages”—not records—of “potentially responsive”—not responsive—materials. Dkt. 22-3 at 41
(Stone Decl. Ex. E). Brenda Gill, the FOIA contact for the U.S. Attorney’s Office in the
Northern District of Mississippi, explains in her supplemental declaration that she originally
searched for “all communications” contained in Bernegger’s file and that she based her
“estimate” of “potentially responsive” materials, id. (Stone Decl. Ex. E), on that overly
expansive search. Dkt. 32-2 at 1–2 (Supp. Gill Decl. ¶¶ 2–5) (emphasis added). The scope of
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her search, and the number of potentially responsive pages, was narrowed when “it was
[subsequently] determined that [Bernegger’s] request” did not include “all communications” in
his file. Id. at 5 (Supp. Gill Decl. ¶ 5).
Needless to say, an estimate does not create an entitlement to that number of pages of
records. EOUSA was required to release or lawfully withhold only those records within the
scope of Bernegger’s request. The Court is convinced by the uncontroverted evidence that it did
so and that the discrepancy between EOUSA’s initial estimation and its ultimate response is not
the product of bad faith and is not evidence that any of the requested records are “missing.”
B. Adequacy of Declarations
Bernegger also argues that the declarations that EOUSA relies upon—one from Princina
Stone, an Attorney-Advisor in on EOUSA’s FOIA/Privacy Act staff, and one from Brenda Gill,
the FOIA “Point of Contact” for the U.S. Attorney’s Office for the Northern District of
Mississippi—are “invalid, null, and void” because they “fail[] the ‘personal knowledge’
requirement” of Federal Rule of Civil Procedure 56(c). Dkt. 31 at 12. As Bernegger correctly
observes, Rule 56(c) provides that a declaration “used to support” a motion for summary
judgment “must be made on personal knowledge.” Fed. R. Civ. P. 56(c). From this non-
controversial premise, however, he incorrectly contends that the Stone and Gill declarations—
and the Vaughn index that accompanies the Stone declaration—“must be struck” because both
declarants merely attest that their declarations are “true and correct” to “the best of [their]
knowledge and belief,” Dkt. 31 at 12–15, and because neither declares to “have personal, or first
hand, knowledge” of all of the relevant information. Id. at 14.
Bernegger misunderstands the personal knowledge requirements for FOIA declarations.
In the FOIA context, a declarant “satisfies the personal knowledge requirement in Rule [56(c)]
if[,] in his declaration, [he] attests to his personal knowledge of the procedures used in handling
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[a FOIA] request and his familiarity with the documents in question.” Barnard v. Dep’t of
Homeland Sec., 531 F. Supp. 2d 131, 138 (D.D.C. 2008) (internal quotation marks and
alterations omitted); see also Johnson v. United States, 239 F. Supp. 3d 38, 43 (D.D.C. 2017);
Inst. for Policy Studies v. CIA, 885 F. Supp. 2d 120, 134 (D.D.C. 2012); Hall v. Dep’t of Justice,
63 F. Supp. 2d 15, 16 n.1 (D.D.C. 1999). A FOIA declarant, moreover, “may include statements
in [his] declaration[] based on information [he] ha[s] obtained in the course of [his] official
duties.” Barnard, 598 F. Supp. 2d at 19; see also Hainey v. U.S. Dep’t of the Interior, 925 F.
Supp. 2d 34, 41 (D.D.C. 2013); Thompson v. EOUSA, 587 F. Supp. 2d 202, 207 (D.D.C. 2008).
The Stone and Gill declarations satisfy this standard, and, indeed, do not differ in any relevant
respect from the types of declarations that are routinely filed, and relied upon, in FOIA cases.
As an initial matter, both declarants establish their competence “to testify on the matters
stated.” Fed. R. Civ. P. 56(c)(4). Stone is an attorney-advisor who works in EOUSA’s FOIA
unit, where she “serve[s] as a liaison among other divisions and offices of the” Department of
Justice and “provide[s] advice on responding to requests for access to information located in . . .
the 93 United States Attorneys’ Offices.” Dkt. 22-3 at 1 (Stone Decl. ¶ 1). More to the point,
she is “familiar with the procedures followed by [her] office in responding to the FOIA
request[]” that Bernegger submitted, and her declaration is based “upon [her] personal
knowledge, information provided to [her] in [her] official capacity, and determinations made in
accordance” with that information. Id. at 2 (Stone Decl. ¶¶ 2–3). Gill, in turn, was the FOIA
point of contact for the U.S. Attorney’s Office for the Northern District of Mississippi at the
relevant time, where her “duties included receiving and reviewing requests made pursuant to
FOIA” and the Privacy Act. Dkt. 22-4 at 1 (Gill Decl. ¶¶ 1–2). She was responsible, moreover,
“for conducting searches within” the U.S. Attorney’s Office “for records responsive to FOIA”
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and Privacy Act requests; she is “familiar with the procedures followed by” her office in
responding to FOIA and Privacy Act requests, and, significantly, was personally involved in
responding to Bernegger’s request. Id. at 1–6 (Gill Decl. ¶¶ 3–4, 7–20). Nothing more is
required to offer competent testimony on the topics addressed in the Stone and Gill declarations.
Accordingly, Bernegger’s objections to EOUSA’s declarations and accompanying
Vaughn index are without merit.
C. Adequacy of Search
Bernegger also challenges the adequacy of EOUSA’s search for responsive records. See
Dkt. 31 at 19–21. The adequacy of an agency’s search for records “is analyzed under the same
standard” for purposes of both FOIA and the Privacy Act. Thompson v. U.S. Dep’t of Justice,
146 F. Supp. 3d 72, 82 (D.D.C. 2015). Under both statutes, the adequacy of the “search is
generally determined not by the fruits of the search, but by the appropriateness of the methods
used to carry [it] out.” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir.
2003). The agency “cannot limit its search to only one record system if there are others that are
likely to turn up the information requested,” but, at the same time, it need not “search every
record system.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Similarly,
the agency need not deploy every conceivable search term or permit the FOIA requester to
dictate the search terms in the course of litigation, but it must use terms reasonably calculated to
locate responsive records. See Agility Pub. Warehousing Co. K.S.C. v. NSA, 113 F. Supp. 3d
313, 339 (D.D.C. 2015) (“Where the search terms are reasonably calculated to lead to responsive
documents, the Court should not ‘micro manage’ the agency’s search.”); see also Physicians for
Human Rights v. U.S. Dep’t of Def., 675 F. Supp. 2d 149, 164 (D.D.C. 2009) (“[Agencies have]
discretion in crafting lists of search terms that they believe[] to be reasonably tailored to uncover
documents responsive to the FOIA request.”).
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The “agency fulfills its obligations under FOIA” and the Privacy Act “if it can
demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all
relevant documents.’” Valencia-Lucena v. U.S. 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)). To prevail on
summary judgment, the agency must submit declarations that “‘denote which files were
searched,’ [and] by whom those files were searched, and [that] reflect a ‘systematic approach to
document location.’” Liberation Newspaper v. U.S. Dep’t of State, 80 F. Supp. 3d 137, 144
(D.D.C. 2015) (quoting Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 371 (D.C. Cir. 1980));
see also Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006);
Oglesby, 920 F.2d at 68. Those 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., 926 F.2d at 1200 (quoting Ground Saucer Watch, Inc. v. CIA,
692 F.2d 770, 771 (D.C. Cir. 1981)). But where “a review of the record raises substantial doubt,
particularly in view of ‘well defined requests and positive indications of overlooked materials,’
summary judgment is inappropriate.” Valencia-Lucena, 180 F.3d at 326 (citation omitted).
Bernegger’s first challenge to the adequacy of EOUSA’s search merely repeats his
contention that the Stone and Gill declarations are “defective,” Dkt. 31 at 19–20, which the Court
has already rejected. He further argues that EOUSA’s motion is based on the “blatantly false
claim” that “Mr. Bernegger requested communications about his criminal case that were sent to
and from three specific AUSA[]s and their legal assistants.” Id. at 20 (quoting Dkt. 22-1 at 18).
This characterization of the scope of his request is incorrect, Bernegger argues, because his
request was “not limit[ed]” to “just his ‘criminal case,’” or to only communications between the
“AUSA[s] and their legal assistants.” Id. The evidence shows, however, that the U.S.
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Attorney’s Office conducted a search for the records Bernegger sought and did not limit its
search to records from “his ‘criminal case.’” As Gill explains in her declaration, she searched for
emails “sent to or sent from AUSAs Mims, McGee, Sanders or their legal secretaries” and that,
at her request, AUSA Mims and McGee “searched their computers for electronic
communications.” Dkt. 22-4 at 4–5 (Gill Decl. ¶¶ 15–16).
More generally, the Court is convinced that the government engaged in a thorough search
for responsive records. Although the U.S. Attorney’s Office had not retained electronically
stored information (“ESI”) for “four former employees” referenced in Bernegger’s FOIA/Privacy
Act request—one of the named AUSAs and three legal secretaries—it was “able to obtain ESI
. . . from four other former legal secretaries,” and it searched those files for responsive records.
Id. at 3–4 (Gill Decl. ¶¶ 14–15). In addition, Gill “made inquiries of all current employees”—
including AUSAs Mims and McGee—“who [had] access to records” likely to contain material
“responsive to [Bernegger’s] FOIA request,” and she searched both electronic and “hard-copy”
files for potentially responsive records. Id. at 5 (Gill Decl. ¶¶ 16–17). Among other things, she
searched email records for “the captioned names or number of plaintiff’s criminal case” and
searched those emails for “any that were sent to or sent from AUSAs Mims, McGee, Sanders, or
their legal secretaries.” Id. at 4 (Gill Decl. ¶ 15). In her supplemental declaration, moreover,
Gill attests that office personnel working at her direction searched AUSA Mims and AUSA
McGee’s computers “using the case numbers listed in” Bernegger’s FOIA request, as well as
“eight multiple variables of [those] numbers,” and also searched for records containing the name
“Bernegger.” Dkt. 32-2 at 2–3 (Supp. Gill Decl. ¶¶ 9–10). It is also clear from the Gill
declaration that the U.S. Attorney’s Office did not narrow its search, as Bernegger contends, to
emails between the specified AUSAs and their secretaries or to emails pertaining to Bernegger’s
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criminal case. Rather, as requested, the office searched for any emails that referenced
Bernegger’s name or the specified criminal case numbers, as well as emails sent to or received
by the specified AUSAs and their legal secretaries.
Finally, Bernegger challenges the adequacy of the search on the ground that EOUSA has
not “disclosed” “the age of the computers” that were searched, and it is possible that the
computers or hard drives were replaced in the time that passed between 2009 and the relevant
searches. Dkt. 31 at 20. That may be true, but it does not call into question the adequacy of the
search. Even if computers or hard drives were replaced, there is no reason to believe that the
U.S. Attorney’s Office kept the old computers or hard drives, and, indeed, Gill attested that she
is “not aware of any other locations . . . where any other records that might be responsive to
plaintiff’s requests are likely to be located.” Dkt. 22-4 at 6 (Gill Decl. ¶ 21). Like all FOIA
requesters, Bernegger is “entitled only to records that an agency has in fact chosen to create and
retain.” Yeager v. DEA, 678 F.2d 315, 321 (D.C. Cir. 1982).
Accordingly, the Court concludes that EOUSA has conducted an adequate search for
responsive records.
D. Exemptions Applied
EOUSA declined to release all or portions of certain records pursuant to FOIA
Exemptions 5, 6, and 7(C). 1 For the most part, Bernegger does not address the application of
these exemptions to specific records but, rather, broadly asserts that “[a]ll of the . . . records
located must be released in full . . . [because] there was gross government misconduct” in his
1
EOUSA also invoked Exemption 7(F), which applies to information compiled for law
enforcement purposes the disclosure of which “could reasonably be expected to endanger the life
or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F). Because EOUSA also invoked
Exemptions 6 and 7(C) to protect the same records, and because the Court concludes that it
lawfully invoked those exemptions, the Court need not separately address Exemption 7(F).
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criminal case. Dkt. 31 at 23. He then goes on for over twenty pages to detail accusations of
misconduct that he claims took place during the prosecution of his criminal case. Id. at 22–40,
45–46. Buried in this discourse, however, Bernegger does raise a handful of more targeted
contentions. With two minor exceptions, the Court is unpersuaded by Bernegger’s arguments.
1. Exemption 6 & 7(C)
FOIA Exemptions 6 and 7(C) protect personal privacy. Although both exemptions
protect similar interests, they differ in scope. Exemption 6 shields “personnel and medical files
and similar files the disclosure of which would constitute a clearly unwarranted invasion of
personal privacy.” 5 U.S.C. § 552(b)(6). “[T]he mere fact that an agency file or record contains
personal, identifying information,” however, “is not enough to invoke Exemption 6;” in addition,
the information must be “of such a nature that its disclosure would constitute a clearly
unwarranted privacy invasion.” Judicial Watch, Inc. v. U.S. Dep’t of State, 282 F. Supp. 3d 36,
49–50 (D.D.C. 2017) (quoting Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C.
Cir. 2002)). This, in turn, requires a two-part analysis. See Edelman v. SEC, 302 F. Supp. 3d
421, 425 (D.D.C. Mar. 23, 2018). The Court must first determine whether “disclosure would
compromise a substantial, as opposed to a de minimis, privacy interest.” Nat’l Ass’n of Retired
Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989). If the agency clears that hurdle, the
Court must then “balance the privacy interest in non-disclosure against the public interest” in
disclosure. Consumers’ Checkbook Ctr. for the Study of Servs. v. U.S. Dep’t of Health & Human
Servs., 554 F.3d 1046, 1050 (D.C. Cir. 2009); see also Judicial Watch, Inc., 282 F. Supp. 3d at
49−50. The analysis of the “public interest” necessarily focuses on the core purpose for which
FOIA was enacted, that is, to ‘shed[] light on an agency’s performance of its statutory duties.’”
Davy v. CIA, 357 F. Supp. 2d 76, 87 (D.D.C. 2004) (quoting U.S. Dep’t of Justice v. Reporters
Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989)).
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Exemption 7(C), in contrast, applies to a narrower category of records than Exemption 6,
but it offers more robust protection of those records. See Tracy v. U.S. Dep’t of Justice, 191 F.
Supp. 3d 83, 95 (D.D.C. 2016). Unlike Exemption 6, Exemption 7(C) applies only to records
“compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7)(C). But, while Exemption 6 is
limited to records “the disclosure of which would constitute a clearly unwarranted invasion of
personal privacy,” id. § 556(b)(6), “[t]he adverb ‘clearly’ . . . is not used in Exemption 7(C),”
Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 165 (2004). Moreover, while
“Exemption 6 refers to disclosures that ‘would constitute’ an invasion of privacy, Exemption
7(C) encompasses any disclosure that ‘could reasonably be expected to constitute’ such an
invasion.” Reporters Comm. for Freedom of the Press, 489 U.S. at 756.
Relying on both Exemption 6 and Exemption 7(C), EOUSA has withheld “names,
address[es,] and telephone numbers of AUSAs, legal assistants, law enforcement officers, and
other personally identifiable information related to witness or nonparty individuals.” Dkt. 22-3
at 8 (Stone Decl. ¶ 32); Dkt. 22-3 at 13–26 (Stone Decl. Ex. A). According to EOUSA, the
individuals whose personal information was withheld have a strong privacy interest here because
Bernegger has engaged in a campaign of “harassment of individuals involved in his criminal case
and [he has a] penchant . . . for filing frivolous civil suits” against those individuals. Dkt. 22-1 at
26. In response, Bernegger argues that neither exemption applies because any privacy interest is
outweighed by the public interest in exposing “corruption or malfeasance” on the part of those
public employees. Dkt. 31 at 23.
The information at issue here involves cognizable privacy interests. It includes “names,
address[es,] and telephone number of AUSAs, legal assistants, law enforcement officers, and
other personally identifiable information related to witnesses and other nonparty individuals,”
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Dkt. 22-3 at 8 (Stone Decl. ¶ 32), and EOUSA has shown that there is reason to believe that
Bernegger will “harass[]” or “retaliat[e] against those individuals identified,” id. at 8–9 (Stone
Decl. ¶ 33). See In re Bernegger, 2015 WL 8347587, at *7 (describing Bernegger’s efforts to
“punish and frustrate those involved in the investigation and prosecution of the criminal fraud
charges against him”). Indeed, “Congress’ primary purpose in enacting Exemption 6”—and, by
extension 7(C)—“was to protect individuals from the injury and embarrassment that can result
from the unnecessary disclosure of personal information.” Dep’t of State v. Wash. Post Co., 456
U.S. 595, 599 (1982); see also Garcia v. EOUSA, 302 F. Supp. 3d 79, 88 (D.D.C. 2018) (“Courts
have applied this exemption broadly, holding specifically that Exemption 6 covers such items as
a person’s name, address, place of birth, employment history, and telephone number.” (internal
quotation marks omitted)).
The existence of a privacy interest, standing alone, however, is insufficient to support
EOUSA’s reliance on Exemptions 6 and 7(C). Both exemptions apply only to “unwarranted
invasion[s] of personal privacy,” 5 U.S.C. §§ 552(b)(6), (b)(7)(C), and thus both require that
agencies and courts balance the privacy interest at stake against the public interest in disclosure.
Favish, 541 U.S. at 171; Consumers’ Checkbook Ctr., 554 F.3d at 1050. Bernegger does not
take issue with the premise that the redacted information implicates personal privacy, but he
argues that any such interest is outweighed by the public interest in exposing government
corruption. In the abstract, he is right. But, as applied to the facts of this case, he is not. As the
Supreme Court has emphasized, it is not enough for a FOIA requester merely to raise accusations
of misconduct; a FOIA requester’s “bare suspicion” of government misconduct is insufficient to
outweigh a “cognizable” privacy interest. Favish, 541 U.S. at 174. Rather, “the requester must
produce evidence that would warrant a belief by a reasonable person that the alleged
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Government impropriety might have occurred.” Id. By any measure, Bernegger fails that test.
He merely rehashes the “venomous and unsubstantiated allegations of misconduct directed at
prosecutors, judges, court staff, witnesses, and others” that other courts have previously
considered and rejected. See In re Bernegger, 2015 WL 8347587, at *11; Bernegger, 2015 WL
1013857, at *2–3. These baseless accusations are insufficient to overcome the privacy interests
at stake.
Bernegger also argues that Exemptions 6 and 7(C) do not apply because the personal
information at issue is already known to him. Dkt. 31 at 40–41. But agencies releasing records
pursuant to FOIA requests must be mindful that “[d]ocuments released in a FOIA action must be
made available to the public as a whole.” Stonehill v. IRS, 558 F.3d 534, 539 (D.C. Cir. 2009);
see also Clay v. U.S. Dep’t Justice, 680 F. Supp. 2d 239, 248 (D.D.C. 2010) (“The FOIA’s . . .
exemptions are designed to protect those ‘legitimate governmental and private interests’ that
might be ‘harmed by release of certain types of information’ to the public at large.” (quoting
August v. FBI, 328 F.3d 697, 699 (D.C. Cir. 2003))). In releasing private information, “an
agency must operate on the assumption . . . that the recipient will further distribute the
information, or that others will seek the same information and reasonably expect similar
treatment by the FOIA office.” Sai v. Transp. Sec. Admin., 315 F. Supp. 3d 218, 261 (D.D.C.
2018). Moreover, on the facts of this case, EOUSA reasonably concluded that permitting
Bernegger to tie the names of government lawyers, their assistants, law enforcement officers, and
others to specific communications would likely invite further harassment.
In addition, Bernegger argues that “government employees . . . . have no right
whatsoever to privacy when conducting gov[ernment] business on gov[ernment] computers.”
Dkt. 31 at 45. This argument hardly merits discussion. Suffice it to say, the privacy interest of
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federal employees “includes the right to control information related to themselves and to avoid
disclosures that ‘. . . conceivably [could] subject them to annoyance or harassment in either their
official or private lives.’” Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec., 384 F. Supp. 2d
100, 116 (D.D.C. 2005) (quoting Lesar v. U.S. Dep’t of Justice, 636 F.2d 472, 487 (D.C. Cir.
1980)).
Bernegger raises one final argument, however, that EOUSA fails directly to confront and
that, at a minimum, requires further briefing and explanation. As he notes, EOUSA relied on
Exemptions 6 and 7(C) to redact identifying information from various emails exchanged between
the U.S. Attorney’s Office and the U.S. District Court for the Northern District of Mississippi.
Dkt. 31 at 42. Courts have long recognized the important “tradition of public access to records
of a judicial proceeding.” United States v. Hubbard, 650 F.2d 293, 314 (D.C. Cir. 1980). That
tradition “serves the important functions of ensuring the integrity of judicial proceedings in
particular and of the law enforcement process more generally.” Id. at 315. Although that
“tradition of access is not without . . . exceptions,” id., the public interest in access to judicial
filings is undeniable. The fact that the communications at issue here occurred by email,
moreover, may signal that they were ministerial, but it does not alter their essential character as
“records of a judicial proceeding.” And, just as the names and contact information of those who
appear on pleadings and other judicial records is usually a matter of public record, it is far from
evident why similar information contained in judicial records taking the form of email should not
receive similar treatment.
Notwithstanding all of this, there may be good reasons for the redactions that EOUSA
made in the email correspondence with the court. Those reasons, however, are not included in
EOUSA’s filings to date, and, accordingly, the Court cannot—at least on the present record—
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grant summary judgment in favor of EOUSA with respect to the redactions from the email
correspondence with the court.
In sum, the Court concludes that EOUSA properly withheld the documents and portions
of documents pursuant to Exemption 6 and 7(C), with the exception of the redactions to the
email correspondence with the U.S. District Court for the Northern District of Mississippi. In
light of this conclusion, EOUSA should either (1) re-release the correspondence with the court
without the Exemption 6 and 7(C) redactions, or (2) file a further declaration explaining in
greater detail why it submits that the redactions are appropriate.
2. Exemption 5
Exemption 5 protects “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). This exemption shields “those documents . . . normally privileged in the civil
discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Courts have,
accordingly, incorporated the three traditional civil discovery privileges under Exemption 5: “(1)
the attorney work-product privilege; (2) the deliberative process privilege; and (3) the attorney-
client privilege.” Wright v. U.S. Dep’t of Justice, 121 F. Supp. 3d 171, 184 (D.D.C. 2015).
Bernegger challenges EOUSA’s invocation of the deliberative process privilege. See Dkt. 31 at
39.
The deliberative process privilege protects “documents ‘reflecting advisory opinions,
recommendations[,] and deliberations comprising part of a process by which governmental
decisions and policies are formulated.’” Sears, Roebuck & Co., 421 U.S. at 150 (quoting Carl
Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966)). The “privilege
rests on the obvious realization that officials will not communicate candidly among themselves if
each remark is a potential item of discovery and front page news, and its object is to enhance ‘the
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quality of agency decisions,’ . . . by protecting open and frank discussion among those who make
them within the Government.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532
U.S. 1, 8–9 (2001) (citations omitted). “Manifestly, the ultimate purpose of this long-recognized
privilege is to prevent injury to the quality of agency decisions.” Sears, Roebuck & Co., 421
U.S. at 151. In responding to Bernegger’s FOIA request, EOUSA withheld documents and
portions of documents that reflect “the back and forth pre-decisional communications among”
attorneys and legal assistants from the U.S. Attorney’s Office, “FBI agents, and other state and
federal [agents] involved in some way with the Bernegger litigation,” as well as “draft unsigned
and undated pleadings prepared by the government attorney during plaintiff’s criminal trial.”
Dkt. 22-3 at 7 (Stone Decl. ¶ 27). According to Bernegger, “grave gov[ernment] misconduct in
and around his trial” precludes EOUSA from relying on the privilege. Dkt. 31 at 39.
The question whether Exemption 5 incorporates a “government misconduct” exception is
unsettled in the D.C. Circuit. See, e.g., Judicial Watch, Inc. v. U.S. Dep’t of State, 285 F. Supp.
3d 249, 253 (D.D.C. 2018); Judicial Watch, Inc. v. U.S. Dep’t of Commerce, No. 15-cv-2088,
2017 WL 3822733, at *2 (D.D.C. Aug. 21, 2017); Neighborhood Assistance Corp. of Am. v. U.S.
Dep’t of Hous. & Urban Dev., 19 F. Supp. 3d 1, 13 (D.D.C. 2013). Bernegger points to In re
Sealed Case, 121 F.3d 729 (D.C. Cir. 1997), in support of his contention that such an exception
exists. In that case, the D.C. Circuit did observe that, because the “deliberative process privilege
is a qualified privilege,” it may be overcome “where there is reason to believe the documents
sought may shed light on government misconduct.” Id. at 737–78 (quoting Texaco P.R., Inc. v.
Dep’t of Consumer Affairs, 60 F.3d 867, 885 (1st Cir. 1995)). In re Sealed Case, however,
concerned a grand jury subpoena, not FOIA, and the D.C. Circuit expressly disclaimed that
“[t]his characteristic of the deliberative process privilege” extends to “FOIA cases.” Id. at 737
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n.5. As the court explained, FOIA differs from a subpoena “because the courts have held that the
particular purpose for which a FOIA plaintiff seeks information is not relevant in determining
whether FOIA requires disclosure.” Id.
But, even assuming that a “government misconduct” exception does apply, courts agree
that a “plaintiff must meet a high bar to properly invoke it.” Judicial Watch, Inc., 285 F. Supp.
3d at 254; see also Hall & Assocs. v. EPA, 14 F. Supp. 3d 1, 9 (D.D.C. 2014) (“While there is
little case law to guide the Court on what quantum of evidence must be shown to support the
[government misconduct] exception, courts have recognized the need to apply the exception
narrowly . . . .”); ICM Registry, LLC v. U.S. Dep’t of Commerce, 538 F. Supp. 2d 130, 133
(D.D.C. 2008) (“In this court, the deliberative process privilege has been disregarded in
circumstances of extreme government wrongdoing.”). Given this high bar, the Court has no
difficulty concluding that Bernegger’s unsubstantiated—and previously rejected—accusations of
government misconduct fall far short of triggering the exception.
Finally, Bernegger argues that EOUSA improperly relied on the deliberative process
privilege to redact one email. See Dkt. 31 at 72. Bernegger assumes that the redacted portion of
the email contains the text of a proposed order that the U.S. Attorney’s Office submitted to the
court, and he argues that the redacted text could not have been deliberative because the proposed
order was “sent [to] the trial court . . . three days earlier.” Dkt. 31 at 43. Because the exhibit
attached to Bernegger’s opposition brief does not include a Bates number, the Court cannot
determine whether, or how, the relevant email is described in the Vaughn index, and, more
generally, the Court cannot determine whether Bernegger’s speculation about the content and
timing of the redacted email is correct. To resolve this uncertainty, the Court will direct EOUSA
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to provide the Court with an unredacted copy of the email for ex parte, in camera review. See 5
U.S.C. § 552(a)(4)(B).
E. Segregability
FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions [that] are exempt.” 5 U.S.C. §
552(b). “While the segregability requirement applies to all documents and all exemptions in the
FOIA,” the courts have recognized that “segregation is not required where the ‘exempt and
nonexempt information are inextricably intertwined, such that the excision of exempt
information would impose significant costs on the agency and produce an edited document with
little informational value.’” Covington v. McLeod, 646 F. Supp. 2d 66, 72 (D.D.C. 2009)
(quoting Mays v. Drug Enf’t Admin., 234 F.3d 1324, 1327 (D.C. Cir. 2000)) (first citation
omitted). The government bears “the burden of justifying nondisclosure,” Mead Data Cent., Inc.
v. U.S. Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977), and must “show with
reasonable specificity why the documents cannot be further segregated,” Armstrong v. Exec.
Office of the President, 97 F.3d 575, 578 (D.C. Cir. 1996) (internal quotation marks omitted).
To carry this burden, the government must provide a “‘detailed justification’ for [withheld
records’] non-segregability.” Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776
(D.C. Cir. 2002) (quoting Mead, 566 F.2d at 261).
Bernegger objects to EOUSA’s representation that it reviewed the responsive records and
determined that “all reasonably segregable non-exempt material” was released, Dkt. 22-3 at 10–
11 (Stone Decl. ¶¶ 42–43), on the ground that Stone’s declaration must be struck for failure to
comply with the personal knowledge requirement of Federal Rule of Civil Procedure 56(c). As
the Court discussed above, that argument is meritless. The Court, moreover, has reviewed
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EOUSA’s Vaughn index, see Dkt. 22-3 at 13–26 (Stone Decl. Ex. A), and concludes that it
supports EOUSA’s contention that it has released reasonably segregable material.
F. Privacy Act
Bernegger also brings suit under the Privacy Act. Dkt. 11 at 8 (Am Compl. ¶ 47). The
preceding discussion of Bernegger’s FOIA claim does not, standing alone, resolve his Privacy
Act claim because “[t]he two acts explicitly state that access to records under each is available
without regard to exemptions under the other.” Martin v. Office of Special Counsel, 819 F.2d
1181, 1184 (D.C. Cir. 1987). The Court must, accordingly, separately consider whether the
records at issue are subject to disclosure under the Privacy Act. Id.; see also Campbell v. U.S.
Dep’t of Justice, 133 F. Supp. 3d 58, 68 (D.D.C. 2015).
Under section (j)(2) of the Privacy Act, “[t]he head of any agency” is authorized to
“promulgate rules . . . to exempt any system of records within the agency from” the disclosure
requirement if, (1) “the system of records is . . . maintained by an agency . . . which performs as
its principal function any activity pertaining to the enforcement of criminal laws,” and (2) the
system of records “consists of . . . information compiled for the purpose of a criminal
investigation . . . or . . . reports . . . compiled at any stage of the process of enforcement of the
criminal laws . . . .” 5 U.S.C. § 552a(j)(2). Relying on this authority, the Attorney General has
promulgated a rule exempting all “[c]riminal [c]ase [f]iles” from, among other provisions, the
Privacy Act’s disclosure requirement. 28 C.F.R. § 16.81(a)(4). According to EOUSA, this
exemption provides ample basis to reject Bernegger’s Privacy Act claim. Dkt. 22-1 at 31–32.
Bernegger, in turn, argues that EOUSA’s Exemption (j)(2) defense fails for three reasons:
First, EOUSA failed to raise the exemption in its responsive pleading and thus waived the
defense. Second, the declarations on which EOUSA relies are “null and void.” Third, email
communications are not maintained in “criminal case files” and therefore fall outside the
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exemption. For the reasons explained above, Bernegger’s second argument is a nonstarter: the
declarations submitted by EOUSA are not defective. Nor was EOUSA required to assert the
exemption in its responsive pleading. No such a requirement exists in the FOIA context, see,
e.g., Ctr. for Pub. Integrity v. FCC, 505 F. Supp. 2d 106, 113 (D.D.C. 2007); Sciba v. Bd. of
Governor of Fed. Reserve Sys., No. 04-cv-1011, 2005 WL 758260, at *1 n.3 (D.D.C. Apr. 1,
2005) (explaining that the case law does “not specify . . . that FOIA Exemptions must be made in
the answer to the complaint”), and the Court sees no basis to apply a different approach under the
Privacy Act. To be sure, just as “an agency may waive the right to raise certain exemptions
[under FOIA] if it fails to raise them prior to the district court ruling in favor of the other party,”
Judicial Watch v. Dep’t of Army, 466 F. Supp. 2d 112, 123–24 (D.D.C. 2006); see also Shapiro
v. U.S. Dep’t of Justice, No. 13-cv-555, 2016 WL 3023980, at *2–3 (D.D.C. May 25, 2016)
(discussing “belated” invocation of FOIA exemptions), it may waive any Privacy Act defenses
that are not raised in briefing dispositive motions. There is no requirement, however, that an
agency identify specific exemptions in its answer.
Finally, Bernegger argues that EOUSA cannot apply Exemption (j)(2) to the emails he
requested because they were not maintained in a “criminal case file” and, therefore, are not
covered by the exemption. Dkt. 31 at 18–19. The Court need not reach that question, however,
because an email database, like that at issue here, does not constitute a “system of records” and,
thus, is not subject to the Privacy Act’s disclosure requirement in the first place. See House v.
U.S. Dep’t of Justice, 197 F. Supp. 3d 192, 210 (D.D.C. 2016). The Privacy Act defines a
“system of records” as “a group of any records under the control of any agency from which
information is retrieved by the name of the individual or by some identifying number, symbol, or
other identifying particular assigned to the individual.” 5 U.S.C. § 552a(a)(5). Decisions from
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this district “have consistently held that . . . email archives,” like the email databases at issue
here, see Dkt. 22-4 at 4–5 (Gill Decl. ¶¶ 14–16) (describing search of active and archived email
systems), “are not ‘systems of records’ under the Privacy Act because they are not indexed by
personal identifier.” Gordon v. Courter, 118 F. Supp. 3d 276, 290–91 (D.D.C. 2015); see also
Campbell, 133 F. Supp. 3d at 69 (agreeing with Gordon); Mobley v. CIA, 806 F.3d 568, 587
(D.D.C. 2015) (holding database of “e-mail traffic to and from other intelligence agencies” was
not a “system of records” because the agency “does not organize records in [the ... database] by
individuals who may be mentioned in those records, nor does [it] retrieve records about
individuals from that database by use of an individual’s name or personal identifier as a matter of
practice.”); Krieger v. U.S. Dep’t of Justice, 529 F. Supp. 2d 29, 42–43 (D.D.C. 2008)
(explaining that the fact that emails could be searched by name or other identifier was
insufficient to render them a “system of records” within the meaning of the Privacy Act).
The Court, accordingly, concludes that EOUSA was not required by the Privacy Act to
search for or to produce records maintained in active or archived email systems.
G. Discovery
Bernegger has also filed a motion for discovery, once again arguing that the
government’s “bad faith” justifies extraordinary relief. He maintains, for example, that EOUSA
failed to account for “missing” documents; that it failed to conduct a search according to his
specifications; that it failed to provide the age of the computers searched; and that the U.S.
Attorney’s Office and others have engaged in a long pattern of government misconduct. See
Dkt. 30. Although courts may permit discovery in FOIA cases “where a ‘plaintiff has made a
sufficient showing that the agency acted in bad faith,’” Justice v. IRS, 798 F. Supp. 2d 43, 47
(D.D.C. 2011) (quoting Voinche v. FBI, 412 F. Supp. 2d 60, 72 (D.D.C. 2006)), Berneggger has
not come close to carrying this heavy burden, see Schrecker v. U.S. Dep’t of Justice, 217 F.
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Supp. 2d 29, 35 (D.D.C. 2002) (“Discovery in FOIA is rare and should be denied where an
agency’s declarations are reasonably detailed [and] submitted in good faith and [where] the court
is satisfied that no factual dispute remains.”). The Court will, accordingly, deny Bernegger’s
motion for discovery.
CONCLUSION
Defendant’s motion for summary judgment, Dkt. 22, is hereby GRANTED in part and
DENIED in part. EOUSA shall either (1) release unredacted versions of the emails sent to or
from the United States District Court for the Northern District of Mississippi, or (2) file a further
declaration explaining why those redactions are appropriate, notwithstanding the important
public interest in access to judicial filings. In addition, EOUSA shall provide the Court with an
unredacted version of the email reproduced on the top of page 72 of Dkt. 31 for ex parte, in
camera review. Pending the Court’s review of those further submissions from EOUSA,
Plaintiff’s cross-motion for partial summary judgment, Dkt. 29, is DENIED without prejudice.
Finally, Plaintiff’s motion for discovery, Dkt. 30, is also DENIED.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: September 20, 2018
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