Ellis v. United States Department of Justice , 110 F. Supp. 3d 99 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANTHONY ELLIS,
Plaintiff,
v. Civil Action No. 13-2056 (JEB)
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendant.
MEMORANDUM OPINION
Pro se Plaintiff Anthony Ellis is currently incarcerated and awaiting trial on federal drug
and firearm charges, based in part on wiretap evidence. Believing that the FBI unlawfully
listened to his calls, he filed a Freedom of Information Act request with the Department of
Justice seeking records related to that surveillance. Dissatisfied with DOJ’s response, Ellis then
brought this suit. Justice now moves for summary judgment, maintaining that its search was
adequate and that certain documents were properly withheld under FOIA exemptions. Because
the Court agrees, it will grant the Motion.
I. Background
Ellis was indicted in 2012 on one count of conspiracy to distribute 100 grams or more of
heroin and one count of conspiracy to carry and possess a firearm in furtherance of a drug-
trafficking crime. See Mot., Exh. 2 (Declaration of Peter C. Sprung), ¶ 6. He filed a FOIA
request on May 27, 2013, asking that DOJ disclose “Title III interception of electronic
communication approval letters and all other documents that are part of electronic surveillance
for the following [three] telephone numbers” with which Ellis allegedly communicated. See
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Sprung Decl., Exh. A (Original FOIA Request). None of these telephone numbers belonged to
Ellis. See id., ¶ 6. On July 3, DOJ’s Office of Enforcement Operations acknowledged receipt of
his request. See Compl., Exh. A (Request Acknowledgment Letter) at 1. Twelve days later,
OEO mailed Ellis a letter stating that “to the extent responsive records do exist, they are exempt
from disclosure pursuant to 5 U.S.C. § 552(b)(3).” Compl., Exh. B (July 15, 2013, Response
Letter) at 1. That FOIA exemption protects records that must be withheld pursuant to another
statute’s requirements – in this case, Title III’s wiretap provisions.
After receiving this response, Ellis filed an appeal with the Director of the Office of
Information Policy. See Compl., ¶ 7. OIP acknowledged receipt of the appeal on August 12,
2013, and informed Plaintiff that it would “notify [him] of the decision on [his] appeal as soon as
we can.” Compl., Exh. C (August 12, 2013, Appeal Acknowledgment Letter) at 1. Contending
that he never received a substantive response to his appeal, see Compl., ¶ 11, Ellis filed this
action on December 26, 2013, naming as defendants the head of the Criminal Division’s
FOIA/PA Unit, as well as the heads of OEO and OIP. See id. at 1. Because FOIA applies only
to executive-branch agencies and not individuals, the Court substituted the Department of Justice
as the named Defendant. See ECF No. 4 (December 31, 2013, Order). In his suit, the documents
he seeks are somewhat narrower than in his original request: “Title III authorization letters,
memorandums, and any other documents involved in their approval for the electronic
surveillance for the following telephone numbers Plaintiff is alleged to have had conversations
intercepted over . . . .” Compl., ¶ 4.
While this suit was pending, and notwithstanding its initial categorical invocation of
FOIA Exemption 3, DOJ conducted a search of two records systems and located many
responsive records. See Mot. at 2; Sprung Decl., ¶¶ 10-20. In October 2014, the agency released
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in full 677 pages and withheld in full approximately 2,651 others. See Sprung Decl., ¶ 36. It has
now moved for summary judgment.
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). 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 moving party’s affidavits or declarations may be accepted
as true unless the opposing party submits his own affidavit, 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
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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 Air Force v. Rose, 425 U.S. 352, 361
(1976) (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 provides that “each 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 5 U.S.C. § 552 (a)(3); Dep’t of
Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989).
“Unlike the review of other agency action that must be upheld if supported by substantial
evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to
sustain its action’ and directs the district courts to ‘determine the matter de novo.’” Reporters
Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552 (a)(4)(B)). “At all times courts 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)).
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In seeking summary judgment, DOJ argues that it conducted an adequate search, properly
withheld records under certain FOIA exemptions, and has no obligation to further segregate
withheld material. The Court will address these arguments in turn.
A. Adequacy of Search
“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). “[T]he issue to be resolved is not whether there might exist any other documents
possibly responsive to the request, but rather whether the search for those documents was
adequate.” Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (emphasis in
original).
The adequacy of an agency’s search for documents requested under FOIA “is judged by a
standard of reasonableness and depends, not surprisingly, upon the facts of each case.” Id. To
meet its burden, the agency may 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)
(per curiam). The affidavits or declarations should “set[] forth the search terms and the type of
search performed, and aver[] that all files likely to contain responsive materials (if such records
exist) were searched.” Oglesby v. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Absent
contrary evidence, such affidavits or declarations are sufficient to show that an agency complied
with FOIA. See Perry, 684 F.2d at 127. “If, however, the record leaves substantial doubt as to
the sufficiency of the search, summary judgment for the agency is not proper.” Truitt, 897 F.2d
at 542.
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As a quick reminder, the documents Plaintiff seeks here are “Title III authorization
letters, memorandums, and any other documents involved in their approval for the electronic
surveillance for the following telephone numbers Plaintiff is alleged to have had conversations
intercepted over . . . .” Compl., ¶ 4. Attached to its Motion, DOJ offered the declaration of
Peter Sprung, a trial attorney in the Criminal Division, who detailed the steps the agency took to
find these records. He explains that he searched the following two records systems: (1) “[the]
OEO database used to track federal prosecutors’ requests for permission to apply for court-
authorization” to conduct Title III wiretaps, and (2) the archived email system maintained by the
Criminal Division’s Information Technology department. See Sprung Decl., ¶ 10.
Justice searched the OEO database because any prosecutor seeking to obtain court
authorization for a Title III application must first obtain approval from senior officials in DOJ’s
Criminal Division. See id., ¶ 12; 18 U.S.C. §§ 2516(1), 2518(1)(a). Before those officials sign
off on the request, it is processed and reviewed by attorneys in OEO’s Electronic Surveillance
Unit, who, inter alia, “review[] the request to ensure that it complies with Title III.” Sprung
Decl., ¶ 12. The OEO database contains both the requests for permission to obtain a wiretap and
the approval letters signed by the Criminal Division officials. It follows that because Ellis
requested records relating to DOJ’s approval of electronic surveillance of certain telephone
numbers, any responsive records would almost certainly be located in the database specifically
designated for this purpose. The agency searched this database for records containing the
specified telephone numbers and the name “Anthony Ellis.” See id., ¶ 15.
DOJ also searched the archived email system – called “Enterprise Vault” – that
automatically archives all emails older than 30 days that have been sent or received by Criminal
Division employees. See id., ¶ 16. Because the search of the Title III database revealed the
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identity of “the [ESU] attorney who reviewed the request to do the wiretapping at issue in this
case and the prosecutor who made the request[,] and [] the time period during which these
attorneys were in communication with each other,” the agency was then able to search the
archived emails of the ESU attorney for all correspondence between that attorney and the
prosecutor. See id., ¶ 19.
DOJ concludes, therefore, that it “searched the two records systems that would contain
information responsive” to Plaintiff’s request and that this search was “in good faith . . .
reasonable and complete.” Id., ¶ 19. Indeed, the search yielded over 3,000 responsive
documents. Ellis rejoins that it was nonetheless inadequate for the following three reasons: (1)
the agency did not conduct its FOIA search until after the lawsuit was filed, (2) the search was
inadequate, insufficient, unreasonable, and conducted in bad faith, and (3) DOJ never conducted
a Privacy Act search for his records. The Court considers each separately.
1. Post-Suit Search
Ellis first contends that DOJ violated FOIA by waiting to conduct a search until after his
suit was filed. See Opp. at 8. Although he is correct about the timing of the search, this does not
mean he is entitled to all requested records. On the contrary, the only consequence of this delay
would be a finding that Plaintiff constructively exhausted his administrative remedies and was
therefore entitled to bring this suit. See Citizens for Responsibility & Ethics in Washington v.
Fed. Election Comm’n, 711 F.3d 180, 184 (D.C. Cir. 2013) (“[I]f the agency does not adhere to
FOIA's explicit timelines, the ‘penalty’ is that the agency cannot rely on the administrative
exhaustion requirement to keep cases from getting into court.”). As DOJ does not proffer any
exhaustion defense here, the point is moot. To the extent Plaintiff seeks monetary damages
because of DOJ’s dilatory conduct, moreover, FOIA provides no such remedies. See Davis v.
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Attorney Gen., 562 F. Supp. 2d 156, 159 (D.D.C. 2008) (“Unlike the remedies available under
the Privacy Act, the FOIA does not provide for monetary damages but rather authorizes the
district court only ‘to enjoin the agency from withholding agency records and to order the
production of any agency records improperly withheld from the complainant.’”) (citing 5 U.S.C.
§ 552(a)(4)(B) and Johnson v. Executive Office of the United States Attorneys, 310 F.3d 771,
777 (D.C. Cir. 2002)). The delay in DOJ’s search thus does not affect its adequacy.
2. General Challenges to Search
For the most part, Ellis offers sweeping contentions that the FOIA search was inadequate,
insufficient, unreasonable, and conducted in bad faith. This position is unconvincing, as DOJ,
through its declaration, has articulated which databases were searched, why those databases were
selected, and what documents were located. See Sprung Decl., ¶¶ 10-20. It has also made clear
that it searched “the two records systems that would contain information responsive” to
Plaintiff’s request. See id., ¶ 19.
Beyond his broad challenges, Ellis sets forth, as best the Court can discern, three more
specific challenges to the overall scope of the search. First, he objects to the fact that the agency
searched only one component of DOJ – i.e., the Criminal Division. See Opp. at 14. Ellis argues
that DOJ should have instead conducted a broader search by including two FBI indices – namely,
“ELSUR” and “CRS” – and another unidentified Executive Office of U.S. Attorneys index. See
Opp. at 10-16. Plaintiff, however, brought suit specifically against Criminal Division
supervisors – who were subsequently replaced by DOJ as the named Defendant – and he did not
name the FBI or EOUSA. As Justice correctly observes, the above indices are not within the
Criminal Division’s control, but rather are housed in separate components within DOJ. See
Reply at 4; Dugan v. Dep’t of Justice, No. 13-2003, 2015 WL 1090323, at *5 (D.D.C. Mar. 12,
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2015) (FOIA suit against DOJ does not extend to component agencies EOUSA and Bureau of
Prisons); see also 28 C.F.R. § 16.3(a)(1) (“The Department has a decentralized system for
responding to FOIA requests, with each component designating a FOIA office to process records
from that component. . . . To make a request for records of the Department, a requester should
write directly to the FOIA office of the component that maintains the records being sought.”). If
Plaintiff was unsure of the location of the records that he sought, he could have sent his request,
per FOIA regulations, to DOJ’s catch-all “FOIA/PA Mail Referral Unit,” which would have then
forwarded the request to the appropriate components. See id. § 16.3(a)(1). Ellis thus may not
complain that the agency failed to search indices under the control of the FBI or EOUSA.
Ellis further asserts that Justice failed to search the Criminal Division’s own “003” and
“019” indices. See Opp. at 15-16. The agency replied that it did, in fact, search the latter index
– i.e., the Title III database – but concedes that it did not search the former, also known as “File
of Names Checked to Determine If Those Individuals Have Been the Subject of an Electronic
Surveillance System of Records.” 28 C.F.R. § 16.91(g). As DOJ reasonably explains, the “003”
index contains the “names of individuals who have been the subject of an electronic
surveillance,” and Plaintiff’s request did not seek information of this type. See Reply at 4.
Rather, as Ellis requested information concerning the approval of surveillance for certain
specified telephone numbers, an “003” search was not required.
Finally, Ellis posits that the agency engaged in bad faith by conducting its search “nearly
14 months after initially admittedly receiving” his request, thus rendering summary judgment
inappropriate. See Opp. at 15. It is true that courts may deny summary judgment when an
agency acts in bad faith. See Bartko v. Dep’t of Justice, No. 13-1135, 2015 WL 2091229, at *7
(D.D.C. May 6, 2015). In determining what conduct rises to that level, however, “[c]ourts
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routinely find that delays in responding to FOIA requests are not, in and of themselves,
indicative of agency bad faith.” Skurow v. Dep’t of Homeland Sec., 892 F. Supp. 2d 319, 326
(D.D.C. 2012); see also Bartko, No. 13-1135, 2015 WL 2091229, at *7 (collecting cases). As
the only evidence Plaintiff offers is agency delay, he cannot foreclose summary judgment, which
the Court will grant for Justice on the adequacy of the search.
3. Privacy Act Search
In his Opposition, Ellis now maintains that DOJ also failed to conduct any Privacy Act
search. See Opp. at 9-10. The only reference to the Privacy Act in his Complaint, however, is in
passing – viz., that he filed a “FOIA/PA” request. See Compl., ¶ 4. He also never makes clear,
in any of his briefings, what relief he seeks under the Privacy Act. See Opp. at 9-10. “Plaintiff
confuses the FOIA, where, as here, the propriety of an agency’s withholding of records is at
issue, with the Privacy Act, 5 U.S.C. § 552a, where the propriety of an agency’s collection,
maintenance, use and dissemination of one’s personal records is at issue.” Davis v. Attorney
Gen., 562 F. Supp. 2d 156, 159 (D.D.C. 2008).
Even if he did want the agency to conduct a Privacy Act “search,” any such search would
be coextensive with the search it carried out in responding to his FOIA request. Indeed, the D.C.
Circuit has held that the adequacy of the search for both FOIA and Privacy Act requests is
analyzed under the same standard. See Chambers v. Dep’t of Interior, 568 F.3d 998, 1003 (D.C.
Cir. 2009) (citing Valencia-Lucena, 180 F.3d at 326). It follows that since the agency conducted
an adequate search under FOIA, it also satisfied the Privacy Act’s requirements.
B. Exemption 5
In withholding in full approximately 2,651 pages, DOJ invokes FOIA Exemptions 5, 6,
and 7(C). See Sprung Decl., ¶ 36. Because it relies on Exemption 5 for each withheld
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document, the Court examines this one alone. See, e.g., Simon v. Dep’t of Justice, 980 F.2d 782,
785 (D.C. Cir. 1992) (finding records exempt from FOIA under one exemption and declining to
address any other).
Exemption 5 applies to “inter-agency or intra-agency memorandums or letters which
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 “those
documents, and only those 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, 798-99 (1984). Exemption 5 encompasses three distinct
components: the attorney-work-product privilege, deliberative-process privilege (sometimes
called “executive 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). Justice here relies on the
first.
“The attorney work-product [prong of Exemption 5] extends to ‘documents and tangible
things that are prepared in anticipation of litigation or for trial’ by an attorney.” Id. at 221
(quoting Fed. R. Civ. P. 26(b)(3)(A)). 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. See id. The privilege, however, is not endless.
No doubt potential future litigation “touches virtually any object of a [law-enforcement-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 be largely defeated.” Senate of Puerto Rico v. Dep’t of Justice, 823
F.2d 574, 586-87 (D.C. Cir. 1987) (internal quotation marks omitted).
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When reviewing a withholding under the work-product prong, then, 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)).
As the D.C. Circuit has observed, this means that the Government must at least
demonstrate that the lawyer who prepared the document possessed the “subjective belief that
litigation was a real possibility, and [the] belief [was] objectively reasonable.” In re Sealed Case,
146 F.3d 881, 884 (D.C. Cir. 1998). It follows that, in order for the Government to discharge its
evidentiary burden, it must (1) provide a description of the nature of and contents of the withheld
document, (2) identify the document’s author or origin, (3) note the circumstances that surround
the document’s creation, and (4) provide some indication of the type of litigation for which the
document’s use is at least foreseeable. See id.
The Criminal Division withheld the following categories of documents pursuant to the
privilege here:
 Prosecutors’ requests for permission to apply for court-authorization to intercept
wire communications, including applications, affidavits of law enforcement
agents, and proposed court orders;
 Office of Enforcement Operations (OEO) Title III System Logging Notes
indicating that OEO has received a request from a prosecutor for permission to
apply for a Title III order with respect to specified telephone numbers;
 Email messages from Electronic Surveillance Unit (ESU) to Assistant United
States Attorneys (AUSA) acknowledging receipt of the AUSA’s Title III
application;
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 Email messages between the prosecutor making the request and the ESU attorney
assigned to review it, in which the attorneys discuss the ESU review process,
edits, revisions, etc.[;]
 Action memoranda from OEO to the Assistant Attorney General (AAG)
recommending approval of prosecutors’ request;
 Authorization Memorandums from the AAG to OEO advising that the
prosecutor’s request has been approved and an attached copy of the AG’s
delegation of authority to the AAG; and
 Letters signed by Deputy AAG’s on behalf of the AAG to a U.S. Attorney
advising that the AAG has approved the prosecutor’s request to apply for a Title
III order.
Mot. at 8-9.
The agency’s detailed explanations in both its declaration and Vaughn Index for why the
lion’s share of these documents were withheld clearly suffice. See Sprung Decl., ¶ 25; Exh. D
(Vaughn Index). First, it described the nature and contents of the withheld documents. See, e.g.,
Vaughn Index at 1 (“This is a request by an AUSA to OEO for permission to apply for a Title III
order concerning mobile tel. no. 412-224-0243 and another number. It was accompanied by
drafts of the application, affidavit, and proposed orders.”). Second, it identified the documents’
origins. See, e.g., id. (“An AUSA prepared this document and submitted it to ESU as part of the
wiretap application process.”). Third, it noted the investigative circumstances around their
creation. See, e.g., id. at 2 (“[The] action memorandum . . . includes the name of the subject of
the investigation . . . [and] the names of those individuals whose conversations have already been
intercepted . . . .”). Finally, it indicated the foreseeable criminal prosecution for which the
documents were created. See, e.g., id. (document was prepared in anticipation of “a criminal
prosecution of the individuals allegedly involved in the criminal activity that was evidenced by
the court-ordered interceptions”).
These types of documents, in short, are classic attorney work product, the disclosure of
which would risk putting DOJ’s lawyers’ thought processes and strategy on public display. The
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records include research and analysis, as well as recommendations about possible courses of
action, created in preparation for criminal prosecution. See SafeCard Servs., Inc., 926 F.2d at
1203 (“[W]here an attorney prepares a document in the course of an active investigation focusing
upon specific events and a specific possible violation by a specific party, it has litigation
sufficiently ‘in mind’ for that document to qualify as attorney work product.”); Wolfson v.
United States, 672 F. Supp. 2d 20, 30 (D.D.C. 2009) (memoranda prepared by Criminal Division
attorneys “in anticipation of a criminal prosecution” recommending that authorization be granted
to apply for Title III order was properly withheld under attorney-work-product privilege because
release would reveal attorneys’ thought processes); Durrani v. Dep’t of Justice, 607 F. Supp. 2d
77, 84 (D.D.C. 2009) (email between attorneys and drafts of indictment and prosecutorial
memorandum covered by privilege); Winterstein v. Dep’t of Justice, Office of Info. & Privacy,
89 F. Supp. 2d 79, 81 (D.D.C. 2000) (same); Government Accountability Project v. Dep’t of
Justice, 852 F. Supp. 2d 14, 26 (D.D.C. 2012) (DOJ properly withheld communications between
a Criminal Division attorney and her supervisor relating to whether DOJ should pursue
prosecution); Miller, 562 F. Supp. 2d at 114-15 (DOJ properly withheld documents “reflect[ing]
such matters as trial preparation, trial strategy, interpretation, personal evaluations and opinions
pertinent to” the defendant’s criminal case); cf. also Rockwell Int’l Corp. v. Dep’t of Justice, 235
F.3d 598, 605 (D.C. Cir. 2001) (parties stipulated that DOJ memoranda prepared in anticipation
of criminal prosecution covered by privilege). Indeed, another judge in this district court,
dealing with virtually identical facts, recently reached the same conclusion. See Dorsey v. Drug
Enforcement Admin., No. 11-1350, 2015 WL 1431707, at *4-5 (D.D.C. Mar. 28, 2015) (DOJ
wiretap-application-process memoranda covered by attorney-work-product privilege).
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Certain withheld records are a closer call, however. The second and third categories of
documents listed above, while undeniably part of an attorney’s work product, possess a partially
administrative character. These documents include system logging notes indicating that OEO
has received a request from a prosecutor for permission to apply for a Title III order and emails
from ESU attorneys to AUSAs acknowledging receipt of Title III applications. Because these
quasi-administrative records were compiled in anticipation of a specific criminal prosecution and
are not generic agency records maintained for some conceivable future litigation, this Court joins
several other courts in this District that have held that the work-product privilege protects them.
See White v. Dep’t of Justice, 952 F. Supp. 2d 213, 219 (D.D.C. 2013) (forms used by attorneys
to track and describe the status of investigation in anticipation of prosecution); Geronimo v.
Executive Office of U.S. Attorneys, No. 05-1057, 2006 WL 1992625, at *4 (D.D.C. July 14,
2006) (internal, administrative “Opening/Closing” form completed by AUSA and directed to
supervisors); Soghoian v. Dep’t of Justice, 885 F. Supp. 2d 62, 73 (D.D.C. 2012) (“The
availability of the privilege is even clearer where documents relate to specific litigation.”). The
Court thus agrees that even these partially administrative records may be properly withheld here.
Plaintiff’s primary argument in response is that the government-misconduct exception
applies, thus vitiating the work-product privilege. See Opp. at 23-30, 29. As an initial matter,
this exception has only been applied to a different privilege covered by FOIA Exemption 5 – the
deliberative-process privilege. See, e.g., Nat’l Whistleblower Ctr. v. Dep’t of Health & Human
Servs., 903 F. Supp. 2d 59, 66-68 (D.D.C. 2012). Even assuming the exception did apply to the
work-product privilege, it is construed very narrowly and only in cases of extreme government
wrongdoing. See id.; see also Neighborhood Assistance Corp. of Am., v. Dep’t of Hous. &
Urban Dev., 19 F. Supp. 3d 1, 14 (D.D.C. 2013) (collecting cases that “recognize a similarly
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high benchmark [of] . . . nefarious or extreme government wrongdoing”). Plaintiff has offered
no specific allegation or evidence to satisfy this high standard.
C. Segregability
Plaintiff last objects that DOJ’s segregability analysis is insufficient. In the FOIA
context, “[i]f a document is fully protected as work product, then segregability is not required.”
Judicial Watch, Inc. v. Dep’t of Justice, 432 F.3d 366, 371 (D.C. Cir. 2005); Citizens for
Responsibility & Ethics in Washington v. Dep’t of Justice, 48 F. Supp. 3d 40, 51 (D.D.C. 2014)
(segregability analysis was not required for documents protected by work-product exemption).
The Court thus need not examine segregability here.
IV. Conclusion
For the foregoing reasons, the Court will issue a contemporaneous Order granting
Defendant’s Motion for Summary Judgment.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: June 22, 2015
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