Neese v. United States Department of Justice ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ASHLEY BROOKE NEESE,
Plaintiff,
v. Civil Action No. 1:19-cv-01098 (CJN)
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendant.
MEMORANDUM OPINION
Ashley Neese is a former Assistant U.S. Attorney who submitted a Privacy Act and
Freedom of Information Act request to the Department of Justice’s Office of Professional
Responsibility, seeking records relating to OPR’s investigation of her. OPR has produced
thousands of pages of records, but has redacted many and has withheld others entirely.
The government has moved for partial summary judgment. See generally Mem. in Supp.
of Def.’s Mot. for Part. Sum. Judg. (“Mot.”), ECF No. 32-1. It argues that OPR’s database is
exempt from the Privacy Act, and that it properly withheld and redacted documents under several
FOIA exemptions. See generally id. It also argues that it conducted an adequate search. See
generally id. The Court agrees on most counts, and thus grants Defendant’s Motion in substantial
part.
BACKGROUND
As an Assistant U.S. Attorney, Neese was involved in a criminal narcotics investigation
called “Operation Pain Train.” Declaration of Margaret S. McCarty (“McCarty Decl.”), ECF No.
32-3, at ¶ 9. A witness involved in that investigation alleged that Neese may have engaged in
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professional misconduct. Id. On May 3, 2018, the Executive Office of U.S. Attorneys referred
these allegations to OPR, id., which is the DOJ section charged with conducting internal
investigations of DOJ employees, id. ¶ 4. OPR initiated an inquiry into the matter, which it later
converted it into a full investigation. Id. ¶ 9.
While OPR’s investigation was ongoing, Neese requested access to the evidence against
her, along with the other information OPR had compiled. Id. ¶ 10. She wanted it to help assist in
responding to the allegations. Id. But while OPR allows investigated attorneys to respond to
allegations in various ways, it treats its investigations as confidential. Id. Thus, while OPR did
provide Neese with copies of her own emails and text messages that it had obtained, it declined to
give her all the information she sought. Id.
Stymied on that front, in July 2018 Neese submitted to DOJ a FOIA and Privacy Act
request seeking six categories of documents relating to the investigation. See Pl.’s Resp. and Opp.
to Def.’s Statement of Material Facts (“Pl.’s Facts”), ECF No. 38, at ¶ 1. OPR acknowledged
receipt of Neese’s request about a month and a half later. Id. ¶ 2. But by December, it had still
failed to act. See id. ¶ 3. Neese thus filed an administrative appeal with the Office of Information
Policy. Id. This lawsuit followed. Id. ¶ 4.
In July 2019, a month after Neese filed suit, OPR finally conducted a search for responsive
documents. See id. ¶ 5. (Neese argues that OPR did some searches before this, but she does not
contest that OPR searched on this day as well. See id.) OPR’s staff obtained all physical records
related to the investigation from Suzanne Drouet, the OPR attorney handling the investigation.
McCarty Decl. at ¶ 16. Drouet also provided all emails she had sent and received regarding the
investigation, and she provided the OPR case number associated with investigation: 201800523.
Id. ¶ 18.
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OPR maintains an electronic document management system, called Hummingbird. Pl.’s
Facts at ¶ 6. Hummingbird maintains copies of all complaints received by OPR and all documents
associated with those complaints. McCarty Decl. at ¶ 17. It organizes that information by case
number; nothing can be included in Hummingbird without being associated with a given
“Case/Subject” number. Id. at ¶ 18; see also Pl.’s Facts at ¶ 6. Accordingly, OPR searched
Hummingbird for “201800523” to locate responsive records. McCarty Decl. at ¶ 18; Pl.’s Facts
at ¶ 6.
For its first search of Hummingbird, OPR searched for all documents filed before July 20,
2018—the date of Neese’s request. Pl.’s Facts at ¶ 7. This search revealed 3,890 potentially
responsive pages of information, as well as 28 discs. Id. Some of these documents had originated
with the Executive Office of U.S. Attorneys, and some had originated with the FBI. Id. ¶ 8 (not
disputing the origination of the documents). OPR thus referred those documents to each respective
department for processing. Id. (not disputing that the referral was made). In particular, on August
13, 2019, OPR referred 2,704 pages and 22 discs of responsive records to EOUSA, id. ¶ 9; sent
another disk that month, id. at ¶ 11; forwarded 107 more pages the next month, id. at ¶ 10; and
sent a single page on November 18, 2019. Id. at ¶ 12. As for the FBI, OPR referred to it seven
pages and one disc for processing. Id. ¶ 13. It followed up with a few more documents later. Id.
¶ 14. During this period, OPR continued making productions of processed documents, many of
which had redactions under FOIA Exemptions 3, 5, 6, 7(C), and 7(E). See id. at ¶¶ 15–19.
By the spring of 2020, Neese had developed some objections to the adequacy of OPR’s
search; she sent it two letters to this effect. Id. ¶ 21. OPR thus conducted another search of
Hummingbird, this time using a cutoff date of July 25, 2019—the date of OPR’s first search. See
id. (not disputing that the search was done). This supplemental search revealed eighty-nine more
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documents. See id. ¶ 22 (not disputing the amount of documents found). All the while, document
production continued. See id. at ¶ 23.
This Motion for Partial Summary Judgment followed. See generally Mot.
LEGAL BACKGROUND
Under Rule 56 of the Federal Rules of Civil Procedure, a court may grant summary
judgment when the pleadings, discovery, affidavits, and other material on file show no genuine
dispute of material fact and that the moving party is entitled to judgment as a matter of law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “[T]he vast majority of FOIA cases
can be resolved on summary judgment.” Brayton v. Office of U.S. Trade Representative, 641 F.3d
521, 527 (D.C. Cir. 2011).
“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 U.S. Dep’t of State v. Ray, 502 U.S.
164, 173 (1991)). This means that an agency must disclose records on request unless they fall
within one of nine statutory exemptions. Milner v. Dep’t of the Navy, 562 U.S. 562, 565 (2011).
After reviewing the agency’s representations on why it made such redactions, the Court must then
decide “whether [the agency’s] non-disclosure was permissible.” Elec. Priv. Info. Ctr. v. U.S.
Dep’t of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015). In doing so, it can rely on the
information provided by the agency—like declarations and affidavits—so long as “the declarations
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.’”
Citizens for Responsibility & Ethics in Wash. v. Dep’t of Labor, 478 F. Supp. 2d 77, 80 (D.D.C.
2007) (quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)).
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It is up to the defendant in a FOIA matter to show that its search for responsive records
was adequate. Light v. DOJ, 968 F. Supp. 2d 11, 23 (D.D.C. 2013). Whether a given search was
adequate necessarily turns on the individual circumstances of each case. Truitt v. Dep’t of State,
897 F.2d 540, 542 (D.C. Cir. 1990). But in all events the “agency must show that it made a good
faith effort to conduct a search for the requested records, using methods which can be reasonably
expected to produce the information requested.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68
(D.C. Cir. 1990). This can be met by providing a “reasonably detailed affidavit, setting for the
search terms and the type of search performed, and averring that all files likely to contain
responsive materials (if such records exist) were searched.” Id.Throughout all of this analysis, the Court must keep in mind that “FOIA, requiring as it
does both systemic and case-specific exercises of discretion and administrative judgment and
expertise, is hardly an area in which the courts should attempt to micro manage [sic] the executive
branch.” Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 662 (D.C Cir. 2003) (quoting Johnson
v. Exec. Off. for U.S. Att’ys., 310 F.3d 771, 776 (D.C. Cir. 2002)).
The Privacy Act provides a separate path to receive certain documents. Under its terms,
an “agency that maintains a system of records” must let an individual get access to “any
information pertaining to [her] which is contained in the system,” 5 U.S.C. § 552a(d)(1), so long
as no exception applies, id. § 552a(k). “If a FOIA exemption covers the documents, but a Privacy
Act exemption does not, the document must be released under the Privacy Act; if a Privacy Act
exemption but not a FOIA exemption applies, the documents must be released under FOIA.”
Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C. Cir. 1987).
I. OPR CONDUCTED AN ADEQUATE SEARCH
Neese first avers that OPR conducted an inadequate search. The Court disagrees.
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As discussed above, OPR began its search in July 2019. McCarty Decl. at ¶ 16. OPR
gathered all physical records related to the Neese investigation from Suzanne Drouet, the OPR
attorney assigned to the investigation, along with all emails she had sent or received related to the
investigation. Id. And she gave OPR the Neese investigation case number, 201800523. Id.OPR then searched that case number in Hummingbird, its document-management system.
Id. at ¶¶ 17–18. All information submitted into Hummingbird is associated with a case number,
so by searching “201800523” in the system, OPR would necessarily identify all records associated
with the Neese investigation in that system. Id. ¶ 18. But OPR also requested that Jeffrey Ragsdale
and William Birney, who had supervised and worked with Drouet on the Neese investigation,
search for and provide any additional emails or documents in their possession that were responsive
to Neese’s request but not stored in Hummingbird. Id. ¶ 19. OPR also independently searched the
electronic files of two former OPR lawyers. Id.
Using the cutoff date of July 20, 2018, OPR identified nearly 4000 pages of responsive
documents, in addition to 28 discs, from these searches. Id. at ¶ 20. OPR later ran a supplemental
search in Hummingbird for the period between July 20, 2018, and July 25, 2019. Id. ¶ 34. It
identified another 89 pages of responsive documents. Id.
OPR conducted a reasonable search. Its declarations show that “it made a good faith effort
to conduct a search for the requested records, using methods which can be reasonably expected to
produce the information requested.” Oglesby, 920 F.2d at 68. Since Neese never identified
particular locations that the agency should look, OPR acted reasonably in deciding “to confine its
inquiry to [its] central filing system.” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 28 (D.C.
Cir. 1998). And by acquiring the records of those in charge of and supervising the Neese
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investigation, OPR has shown that it followed all leads that were both “clear and certain.”
Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996).
Neese’s arguments to the contrary miss the mark. First, she notes that it took more than a
year following her submission for OPR to conduct its initial search. See Pl.’s Reply and Opp. to
Def.’s Mot. for Par. Sum. Judg. (“Pl’s Resp.”), ECF No. 37, at 12–13. But while this delay is
troubling, it does not go to the adequacy of the search that OPR did eventually conduct.
Second, Neese notes the “critical admission and concession that OPR has its own system
of records and that all records about Ms. Neese were retained in that system,” Hummingbird. Id.
at 13. She then explains that she knows there is a transcript of an interview from May 3, 2018,
that should be stored in that database, but has not yet been produced. Id. But Neese later
acknowledges that OPR sent the transcript at issue to another agency for processing and
production. Id. at n.10. While Neese has some objections about that referral, that does not go to
the adequacy of the search conducted by OPR. If anything, the fact that this document was located
confirms the wisdom of OPR’s decision to primarily focus its search efforts on the Hummingbird
system.
Next, Neese notes that the initial search conducted by OPR was necessarily incomplete, as
OPR has since supplemented its initial search with more recently discovered responsive records.
Id. at 13. But “continuing discovery and release of documents does not provide that the original
search was inadequate, but rather shows good faith on the part of the agency that it continues to
search for good documents.” Landmark Legal Found. v. EPA, 272 F. Supp. 2d 59, 63 (D.D.C.
2003). Indeed, the Court of Appeals has explained that it “would be unreasonable to expect even
the most exhaustive search to uncover every responsive file.” Meeropol v. Meese, 790 F.2d 942,
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953 (D.C. Cir. 1986) (emphasis in original). Supplemental searches and productions are not only
proper, but often necessary.
Neese also objects to McCarty’s declaration, noting that it does not state whether OPR
conducted any “computer searches” to locate the requested records. Pl.’s Resp. at 14. She cites
an unpublished case from 1994 for support. See id. (citing Thompson Publ’g Grp., Inc. v. Health
Care Fin. Admin., No. 92-2431, 1994 WL 116141, at *1 (D.D.C. Mar. 15, 1994)). But that is not
a fair characterization of McCarty’s declaration. And in any event, McCarty has since
supplemented her declaration, making clear that OPR did conduct a “computer search” of all
relevant sources. See Sec. Decl. of Margaret S. McCarty (“Sec. McCarty Decl.”), ECF No. 44-1,
at ¶ 10.
Neese also questions OPR’s failure to search the records of two of its former employees.
Pl.’s Resp. at 14. But as OPR’s declaration explains, those employees’ “only involvement was in
receiving and acknowledging Plaintiff’s Privacy Act and FOIA requests; they were not involved
in the underlying misconduct investigation that is the subject of Plaintiff’s request for records.
Accordingly, they would not possess records responsive to the requests, unless copies of those
records were provided to them by Ms. Droute, Mr. Ragsdale, or Mr. Birney.” Sec. McCarty Decl.
at ¶ 12. OPR has thus submitted a “reasonably detailed affidavit . . . averring that all files likely
to contain responsive records (if such records exist) were searched.” Oglesby, 920 F.2d at 68.
That is enough.
Neese also questions what she sees as an internal inconsistency in some letters that OPR
sent her. On March 6, 2020, she notes, OPR sent her a letter saying that thirty-eight pages of
internal emails were sent by OPR to EOUSA for consultation. Pl.’s Resp. at 14. A few months
later, OPR told her that twenty-five pages of internal emails had been sent to EOUSA—not thirty-
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eight. Id. at 15. That leaves thirteen pages unaccounted for. But as McCarty explains, the March
6 letter contained an error: twenty-five pages had been sent to EOUSA, and thirteen pages to the
FBI, for a total of thirty-eight pages. Sec. McCarty Decl. at ¶ 13. This quibble does not suggest
that OPR’s search was inadequate.
Finally, Neese argues that OPR conducted an inadequate search by using as a cutoff date
the date of her request, and then supplementing it with another search a year later. Pl.’s Resp. at
15. She notes that she wants OPR to conduct more new searches to avoid future litigation. As she
puts it, “to avoid future litigation, Plaintiff Neese asked OPR to produce to her records and
information pertaining to the Neese investigation that were created or obtained after July 25, 2019
within communications with DOJ employees as part of the present litigation.” Id. at 16. Yet it is
not up to this Court to order supplemental searches after the initial search date; a responding agency
is under no obligation to search for records created after the date of the FOIA request. See Am.
Oversight v. U.S. Dep’t of Justice, 401 F. Supp. 3d 16, 36–37 (D.D.C. 2019). This makes sense:
a FOIA request seeks documents that exist at a specific moment in time. It does create an unending
obligation to collect and produce all documents created in the future.
Accordingly, the Court concludes that OPR conducted an adequate search.
II. OPR REASONABLY REFERRED DOCUMENTS TO OTHER DOJ COMPONENTS
Neese next objects to OPR’s having referred documents to other DOJ components for
processing. See Pl.’s Resp. at 16–19. She notes that she is “unaware of any statutory authority,
caselaw, or Department Regulations that require OPR to send records maintained in OPR’s system
of records pertaining to Plaintiff Neese to any other component for review and production.” Id. at
16 (emphasis in original). But even if these referrals were not required, that does not mean they
were not allowed. Neese submitted her FOIA and Privacy Act request to the Department of Justice.
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OPR is, of course, part of the DOJ, as are the EOUSA and FBI—the two components to which
OPR referred documents. This is not a case where referrals were made outside of an agency, let
alone the Executive Branch. Contra Maydak v. U.S. Dep’t of Justice, 254 F. Supp. 2d 23, 40
(D.D.C. 2003).
Neese’s real objection seems to be the pace with which EOUSA and the FBI have
processed those documents. But those documents are not before the Court on this Motion. Indeed,
the Court asked the Parties if they thought it more appropriate to wait until all productions had
been made before resolving this Motion. See Minute Order of Sept. 9, 2021. Both said no. See
generally Joint Status Report of Oct. 15, 2021, ECF No. 54.
Thus, because OPR can refer documents to other DOJ components, whether required to or
not, the Court sees no merit to Neese’s objection that it did.
III. OPR’S DATABASE IS EXEMPT FROM THE PRIVACY ACT
Turning to Neese’s principal argument, she contends that the Privacy Act applies to her
request, and thus FOIA exemptions are irrelevant. See Pl.’s Resp. at 19–32. OPR disagrees,
arguing that it has properly invoked exemption (k)(2) to the Privacy Act. See Def.’s Reply in
Supp. of Mot. for Par. Summ. Judg. (“Def.’s Reply”), ECF No. 44, at 8–11.1 The Court agrees
with OPR.
Exemption (k)(2) exempts from disclosure investigatory material compiled for law-
enforcement purposes. 5 U.S.C. § 552a(k)(2). And as explained by OPR’s declarant, pursuant to
28 C.F.R. § 0.39a, OPR has authority to investigate allegations of misconduct involving DOJ
attorneys relating to the exercise of their authority to investigate, litigate, or provide legal advice.
1
The government originally claimed that exemption (j)(2) applied, as well. See Mot. at 5–6. It
did not defend this assertion in its Reply Brief. See Def.’s Reply at 8–11. The Court will thus
only consider the exemption (k)(2) argument.
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McCarty Decl. ¶ 37. “Under this investigative authority, OPR’s principal law enforcement duty
is to review, investigate, and when warranted, refer findings of professional misconduct to the
Professional Misconduct Review Unit for appropriate action.” Id. (citing 28 C.F.R. § 0.39a(a)(1)).
In this case, “[u]pon a referral from the U.S. Attorney through EOUSA, based upon
allegations from a witness in a criminal investigation, OPR compiled the records at issue in this
case from a variety of sources to fully investigate allegations that Plaintiff may have violated
applicable standards of ethical conduct in the criminal Operation Pain Train investigation and
resulting prosecutions.” Id. As the declaration explains, “OPR’s investigation focuses on these
specific alleged illegal acts that, if proved, could result in civil sanctions, such as referral to state
bar licensing authorities.” Id.Neese disagrees. She argues that OPR’s declaration cites no caselaw holding that OPR’s
entire system of records is exempted under exemption (k)(2). Pl.’s Resp. at 30–31. Rather, she
contends, exemption (k)(2) covers only material compiled for criminal matters, as well as material
compiled for other investigative law-enforcement purposes. Id. at 31. OPR’s database, she argues,
does not fall under either prong. See id.
The arguments by both parties largely miss the relevant question. Exemption (k)(2) does
not apply at a court’s discretion, or depending on whether the Court views the records contained
in the system to be of the kind that should be exempt. Rather, the statute allows an agency to
promulgate rules exempting such systems from the Privacy Act: “The head of any agency may
promulgate rules, in accordance with the requirements (including general notice) of [certain
sections] of this title, to exempt any system of records within the agency from [certain subsections]
of this section if the system of records is investigatory material compiled for law enforcement
purposes, other than material within the scope of subsection (j)(2) of this section.” 5 U.S.C.
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§ 552a(k)(2). It is not up to this Court, then, to determine if OPR’s database should be exempt
under subsection (k)(2). Rather, the question is whether the agency head has promulgated rules
exempting it.
It has. Under 28 C.F.R. § 16.80, the “Office of Professional Responsibility Record Index
(JUSTICE/OPR-001)” is a “system of records [ ] exempt from 5 U.S.C. 552a(c)(3) and (4), (d),
(e)(1), (2), and (3), (e)(4)(G) and (H), (e)(5) and (8), (f) and (g).” 28 C.F.R. § 16.80(a)(1). And
as the McCarty Declaration explains, Neese “sought records about herself that are maintained in
OPR’s Privacy Act system of records (JUSTICE/OPR-001, 76 Fed. Reg. 66752).” McCarty Decl.
¶ 36. Those records are thus exempt from the Privacy Act’s terms. See id. (citing 28 C.F.R.
§ 16.80).2
Accordingly, because DOJ has “promulgate[d] rules” exempting OPR’s database from the
Privacy Act under 5 U.S.C. § 552a(k)(2), see 28 C.F.R. § 16.80(a)(1), Neese cannot invoke the
Privacy Act to recover records in that database.
2
The Court recognizes that, in 1986, the Court of Appeals rejected similar logic in the context of
the FBI’s Central Record System. See Vymetalik v. FBI, 785 F.2d 1090, 1094–95 (D.C. Cir. 1986).
But the regulation exempting that database is nothing like the one at issue here. As the Court of
Appeals explained, the regulation there exempted the Central Record System “only to the extent
that information in this system is subject to exemption pursuant to 5 U.S.C. [§] 552[a](j) and (k).”
Id. at 1095 (quoting 28 C.F.R. § 16.96). No such limitation exists in OPR’s regulation. Further,
Vymetalik relied on the specific legislative history underlying the FBI’s systems. See id. That, of
course, holds no weight here. And the Court of Appeals has since confirmed the FBI-specific
nature of this holding. See Doe v. FBI, 936 F.2d 1346, 1353 (D.C. Cir. 1991) (“Although both
subsections (j) and (k) refer to ‘systems of records,’ we have previously held that 28 C.F.R.
§ 16.96, the FBI exemption regulation respecting its CRS, does not remove that entire filing system
from the requirements of the Act.”). Outside of this context, courts tend to focus on the core of
the statutory language. See Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1119 (D.C. Cir. 2007)
(“Heads of agencies may . . . promulgate rules exempting particular systems of records from
§ 552a(d)(1) under conditions described at § 552a(j)–(k).”); Barnard v. Dep’t of Homeland Sec.,
598 F. Supp. 2d 1, 25 (D.D.C. 2009) (“[R]egulations have, in fact, been promulgated to exempt
these electronic systems from the disclosure provisions of the Privacy Act. Accordingly, the Court
shall grant Defendant’s Motion for Summary Judgment and deny Plaintiff’s Cross-Motion for
Summary Judgment with respect to Privacy Act Exemptions (j)(2) and (k)(2).”).
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IV. OPR PROPERLY REDACTED AND WITHHELD DOCUMENTS UNDER FOIA
Because OPR’s system of records is exempt from the Privacy Act, the Court must assess
the reasonableness of OPR’s redactions and withholdings under FOIA. Neese challenges each
claimed FOIA exemption. See Pl.’s Resp. at 32–45. But her challenges mostly fall short.
A. FOIA Exemption 3
Under FOIA Exemption 3, 5 U.S.C. § 552(b)(3), an agency need not disclose information
that is exempted from disclosure by statute. OPR invokes this exemption to protect grand-jury
material, which is protected from disclosure by Federal Rule of Criminal Procedure 6(e). See
McCarty Decl. ¶ 42; see Murphy v. Executive Office for U.S. Attys., 789 F.3d 204, 206 (D.C. Cir.
2015) (“[A]lthough a rule is not generally considered to be a statute, [Federal Rule of Criminal
Procedure 6(e)] qualifies as one under FOIA because the Congress has enacted it into positive
law.”). Specifically, OPR redacted certain information on twenty pages that identify witnesses
who appeared before the grand jury. McCarty Decl. ¶ 42 & n.1.
While Neese is concerned that she “must solely rely upon the statements made by the FBI
and OPR with respect to exemption 3,” Pl.’s Resp. at 37, she does note that “[t]he grand jury
material pertaining to the Pain Train investigation is not the pertinent information Plaintiff Neese
sought in her FOIA and Privacy Act requests,” id. at 38. While this is not a concession, the Court
finds that Exemption 3 was properly invoked to protect grand-jury materials. The McCarty
Declaration details how the material would tend to reveal secret aspects of the investigation, like
witness identities. McCarty Decl. ¶ 41. That is enough. See Murphy, 789 F.3d at 206
(“[I]nformation related to a grand jury matter may be withheld under exemption 3 ‘if the disclosed
material would tend to reveal some secret aspect of the grand jury’s investigation, including the
identities of witnesses.’ ” (quoting Hodge v. FBI, 703 F.3d 575, 580 (D.C. Cir. 2013)).
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B. FOIA Exemption 5
FOIA Exemption 5 covers “inter-agency or intra-agency memorandums or letters that
would not be available to a party other than an agency in litigation with the agency.” 5 U.S.C.
§ 552(b)(5). This language “ ‘incorporates the traditional privileges that the Government could
assert in civil litigation against a private litigant’—including the presidential communications
privilege, the attorney-client privilege, the work product privilege, and the deliberative process
privilege—and excludes these privileged documents from FOIA’s reach.” Loving v. Dep’t of Def.,
550 F.3d 32, 37 (D.C. Cir. 2008) (quoting Baker & Hostetler LLP v. U.S Dep’t of Commerce, 473
F.3d 312, 321 (D.C. Cir. 2006)); see also Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill,
443 U.S. 340, 359 (1979) (commercial-information privilege). But in order to properly invoke the
exemption, it is not enough for the government to show that one of these privileges or doctrines
applies. It must also show that it “reasonably foresees that disclosure would harm an interest
protected by” the exemption. 5 U.S.C. § 552(a)(8)(A)(i)(I). Both OPR and the FBI withheld
documents under Exemption 5, citing to attorney-client privilege, attorney-work-product privilege,
and deliberative-process privilege. See Mot. at 9. Neese challenges only those withholdings made
under the deliberative-process privilege. See Pl.’s Resp. at 38–40.
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.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (quoting
Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966)). To invoke this
privilege, an agency must show that the document is predecisional and deliberative. Access
Reports v. Dep’t of Justice, 926 F.2d 1192, 1194 (D.C. Cir. 1991). A predecisional document is
one that comes before an agency policy is adopted. See Jordan v. Dep’t of Justice, 591 F.2d 753,
14
774 (D.C. Cir. 1978) (en banc). But the agency need not identify which final decision the
document is predecisional to; the agency need only identify “what deliberative process is involved,
and the role played by the documents at issue in the course of that process.” Heggestad v. U.S.
Dep’t of Justice, 182 F. Supp. 2d 1, 7 (D.D.C. 2000).
Neese raises a threshold objection to OPR’s invocation of the deliberative-process
privilege: “This was an OPR inquiry and investigation. This matter did not involve Executive
Branch policy making or deliberations and that exemption affords no protection here.” Pl.’s Resp.
at 38. But she cites no case for this narrow view of the deliberative-process privilege, and the
Court cannot find any on its own. Rather, an agency need only demonstrate that the information
is predecisional and deliberative to some policy or decision. See, e.g., Dep’t of Interior v. Klamath
Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (“[D]eliberative process covers documents
reflecting advisory opinions, recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated.” (quotations omitted)); see also Access
Reports, 926 F.2d at 1194. And, in any event, OPR is a division of the Department of Justice—an
Executive Branch agency. See Bartko v. U.S. Dep’t of Justice, 898 F.3d 51, 70 (D.C. Cir. 2018)
(“Exemption 5 was properly applied to protect OPR’s deliberative, pre-decisional process and its
discussion of matters related purely to the pending FOIA litigation.”).
Turning to the specific withholdings that Neese challenges, Pl.’s Resp. at 39, the Court
concludes that OPR properly invoked the deliberative-process privilege. In Bates Number 300,
for example, the Vaughn Index explains that the redactions were made to “[i]nternal OPR e-mails
among OPR attorneys . . . concerning the handling of the Neese investigation.” Vaughn Index,
ECF No. 32-5 at 10. The information redacted under exemption 5 on that page “contains internal,
pre-decisional information revealing attorney opinions and thought processes on the handling of
15
OPR’s investigation, the disclosure of which would disclose internal pre-decisional discussions
and chill full and frank exchange among OPR attorneys.” Id. That is a valid application of the
privilege. See Bartko, 898 F.3d at 70. And it applies with equal force to OPR’s other invocations
of the privilege. See, e.g., id. at 15 (Bates Number 361; “internal OPR e-mail . . . discussing
analysis of request from David Barger”); 17 (Bates Number 386–387; email from OPR attorney
“forwarding a May 14, 2018 internal OPR e-mail exchange . . . identifying particular text messages
and discussing their significance to the investigation”); 20 (Bates Number 400; emails amongst
OPR attorneys discussing “notes of Clark interview”); 21 (Bates Number 405; “internal OPR e-
mail . . . pertaining to an interview outline”); 22 (Bates Number 410; email “suggesting
investigative steps in the Neese investigation”).3 Having reviewed each of the redactions made
under Exemption 5, the Court concludes, from its inspection of the Vaughn Index and the relevant
declarations, that OPR’s explanations were full and specific enough to give Neese a meaningful
opportunity to contest each one, and to give this Court enough foundation to conclude that each
withholding was sound. King v. Dep’t of Justice, 830 F.2d 210, 217–18 (D.C. Cir. 1987).
C. FOIA Exemption 6 and 7(C)
Exemption 6 covers “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). And
exemption 7(C) covers “records or information compiled for law enforcement purposes, but only
to the extent that the production of such law enforcement records or information . . . could
3
Neese also challenges the invocation of exemption 5 for Bates Numbers 383–384, 621, and 687.
See Pl.’s Resp. at 39. But OPR did not rely on exemption 5 for these pages. See Vaughn Index at
16, 32, 45. And while Neese challenges the invocation of Exemption 5 for Bates pages 909, 948,
953–75, 983–1005, 1015–18, and 1046, see Pl.’s Resp. at 39, those pages were withheld in full
pursuant to exemptions 5, 6, and 7(C), see Vaughn Index at 70. The Court concludes that
withholding the documents was proper under exemption 5, but even if it were not, Neese’s
objection to these documents would still fall short on these alternative grounds. See infra.
16
reasonably be expected to constitute an unwarranted invasion of personal privacy.” Id.§ 552(b)(7)(C). If Exemption 7 applies, this Court need not “consider Exemption 6 separately
because all information that would fall within the scope of Exemption 6 would also be immune
from disclosure under Exemption 7(C).” Roth v. Dep’t of Justice, 642 F.3d 1161, 1173 (D.C. Cir.
2011). But both exemptions require some form of balancing to determine the privacy interest at
stake.
Before invoking exemption 7(C), however, an agency must first show that the information
was “compiled for law enforcement purposes.” Id. § 552(b)(7). The Court of Appeals has taken
a broad view of this language, instructing that the key inquiry is “whether the files sought relate to
anything that can fairly be characterized as an enforcement proceeding.” Jefferson v. Dep’t of
Justice, 284 F.3d 172, 177 (D.C. Cir. 2002) (quotation omitted). Courts must also focus “on how
and under what circumstances the requested files were compiled.” Id. at 176–77. And courts must
ensure than an agency “establish[es] a rational nexus between the investigation and one of the
agency’s law enforcement duties and a connection between an individual or incident and a . . .
violation of federal law.” Bartko, 898 F.3d at 64 (quoting Center for Nat’l Sec. Studies v. Dep’t
of Justice, 331 F.3d 918, 926 (D.C. Cir. 2003)) (internal quotation marks omitted). Since OPR
does not specialize in law enforcement, it “bears the burden of showing on a case-by-case basis
that any requested records were actually compiled for law-enforcement, rather than employment-
supervision, purposes.” Id. at 65.
There is a long history of FOIA requesters attempting to get documents regarding OPR
investigations, and of OPR attempting to invoke exemption 7(C) to withhold such records. In
Kimberlin v. Department of Justice, for example, a requester sought “all papers, documents and
things pertaining to the OPR investigation” of an Assistant U.S. Attorney. 139 F.3d 944, 947 (D.C.
17
Cir. 1998). The Court of Appeals stated that “[m]aterial compiled in the course of . . . internal
agency monitoring does not come within Exemption 7(C) even though it might reveal evidence
that later could give rise to a law enforcement investigation.” Id. (quotations omitted).
“Concluding, however, that ‘the OPR investigation here at issue was conducted in response to and
focused upon a specific, potentially illegal release of information by a particular, identified
official,’ the court concluded that the information in the OPR files was compiled for law
enforcement purposes.” Jefferson, 284 F.3d at 177 (quoting Kimberlin, 139 F.3d at 947).
The Court is cognizant that the Court of Appeals has “decline[d] to hold as a matter of law
that all OPR records are necessarily law enforcement records.” Jefferson, 284 F.3d at 178. And
normally, OPR’s invocation of exemption 7(C) would likely fall short. As the Bartko court
explained, while violations of the “U.S. Attorney’s Manual, the North Carolina Code of
Professional Conduct, and other ethical and legal obligations . . . could conceivably result in civil
or criminal sanction, many of them would not, and would bear only on internal disciplinary
matters.” Bartko, 898 F.3d at 65. Here, OPR failed to detail whether the alleged ethical violations
could result in civil sanctions. See generally McCarty Decl.
But a crucial detail shows that OPR’s investigation could not have been focused on the
“customary surveillance of the performance of duties by [a] government employee[ ].” Jefferson,
284 F.3d at 177. Instead, it necessarily must have been “compiled for law-enforcement, rather
than employment-supervision, purposes,” Bartko, 898 F.3d at 65, because Neese was no longer a
government employee during the overwhelming majority of the investigation. After all, she
“resigned her position as an AUSA shortly after OPR initiated its inquiry and therefore was no
longer a Department of Justice employee,” during its pendency, McCarty Decl. ¶ 54. The
18
sanctions to be imposed, if any, could only be external. Id. (“[The allegations], if proved, could
result in civil sanctions, such as referral to state bar licensing authorities.”).
Since OPR has shown that exemption 7(C)’s threshold requirement is met, the Court next
turns to balancing.
The first category of information that OPR redacted was the “[n]ames and other identifying
information of FBI Agents and OPR, EOUSA, and USAO [s]taff.” McCarty Decl. at 12. This
information includes cellphone numbers, email addresses, names, and the like. Id. ¶ 56. As
McCarty explains, “disclosure of this information in connection with an OPR misconduct
investigation or the USAO’s Operation Pain Train criminal investigation could expose these
employees to unwanted attention, notoriety, or harassment.” Id. ¶ 57. The declaration further
details how disclosing the names of FBI agents, in particular, could severely impact their abilities
to conduct their jobs. See id. While the public might have an interest in how OPR works, that
interest does not extend to the contact information of various low-level employees. Id. ¶ 58. The
Court agrees with this analysis. See Brown v. FBI, 873 F. Supp. 2d 388, 403–04 (D.D.C. 2012)
(allowing redactions of FBI agent names and phone numbers under exemption 7(C)).
The next category of information that OPR redacted was the “names and other identifying
information of third parties incidentally mentioned.” McCarty Decl. at 13 (capitalization
removed). This information includes the names, phone numbers, and other identifying information
for a legal assistant at a private law firm and other private citizens, “such as court reporters and
family members of individuals involved in OPR’s investigation, who are incidentally identified in
responsive records.” Id. ¶ 59. OPR explained the commonsensical reasons why these individuals
have a privacy interest in keeping this information private. Id. ¶ 60. And it explained how there
is no public interest in that same information. Id. ¶ 61. The Court again agrees with its analysis.
19
See SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991) (“We now hold
categorically that, unless access to the names and addresses of private individuals appearing in
files within the ambit of Exemption 7(C) is necessary in order to confirm or refute compelling
evidence that the agency is engaged in illegal activity, such information is exempt from
disclosure.”).
OPR also redacted “identifying information about the complainant and third parties
personally associated with the complainant.” McCarty Decl. at 14 (capitalization removed). As
OPR explained, it keeps information about complaining witnesses confidential in order to
“encourage individuals to provide the most accurate and frank information without fear of being
identified and becoming a target for retaliation.” Id. ¶ 63. OPR claims that this interest outweighs
the public’s interest in this small category of information. Id. ¶ 64. The Court again agrees. See
Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003) (“[O]ur decisions have
consistently supported nondisclosure of names or other information identifying individuals
appearing in law enforcement records, including investigators, suspects, witnesses, and
informants.”).
Next, OPR redacted “names and identifying information of witnesses and third parties
connected with Operation Pain Train.” McCarty Decl. at 15 (capitalization modified). As OPR
explained, “[i]dentifying a private citizen in connection with a criminal or misconduct
investigation is likely to engender speculation, could stigmatize the individual, and could subject
them to harassment or criticism.” Id. ¶ 66. That outweighs the public’s interest, if any, in that
information. Id. ¶ 67. See SafeCard Servs., 926 F.2d at 1206; Schrecker, 349 F.3d at 661.
Finally, OPR redacted the “names and identifying information of subjects of other OPR
investigations.” McCarty Decl. at 15 (capitalization modified). For many of the same reasons
20
discussed above, the privacy interest of these individuals outweighs the public’s interest, as OPR
has detailed in its declaration. See id. at ¶ 68; see also Citizens for Responsibility and Ethics in
Washington v. U.S. Dep’t of Justice, 854 F.3d 675, 681–82 (D.C. Cir. 2017) (excluding under
Exemption 7(C) those “named or otherwise identified who have not previously been publicly
implicated in the corruption investigation”).4
D. FOIA exemption 7(E)
Exemption 7(E) covers “records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement records or information . . . 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). “Exemption
7(E) sets a relatively low bar for the agency to justify withholding”; the agency need only
“demonstrate logically how the release of the requested information might create a risk of
circumvention of the law.” Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011) (quotations
omitted).
The FBI used exemption 7(E) to withhold two categories of information: nonpublic
internal email addresses; and methods used by the FBI to collect and analyze information it obtains
4
It is worth noting that, despite having McCarty’s Declaration and its justifications for the
redactions, Neese does not directly challenge any of the balancing arguments. See Pl.’s Resp. at
41–43. Instead, she broadly contends that this is a matter of public interest, and notes that with
respect to certain documents, she received much of the same information that OPR has redacted
in other documents. Id. at 41. But as the Second McCarty Declaration explains, these records
were Neese’s own: text messages she had sent and received, plus others that she authored or
received. Second McCarty Decl. at ¶ 19. “Even though OPR could have justifiably asserted FOIA
exemption 6 or 7(C) to protect the privacy of the individuals names,” McCarty explained,
“agencies are permitted under the FOIA to exercise their discretion to make voluntary disclosure
of information.” Id. In doing so, the agency did not lose its ability to redact documents that did
not originate with Neese.
21
for investigative purposes. See Mot. at 20–21. Neese does not challenge this first category of
redactions. See Pl.’s Resp. at 43. But she does challenge the second. See id.Neese’s objection is well placed. While the government’s burden is low, it has failed to
demonstrate how release of the requested information might create a risk that the law is
circumvented. The government merely regurgitates the statutory test, explaining how the release
of this information would disclose the identity of the methods it used to collect and analyze
information, including where it collects information and the methodologies it uses to analyze it
once collected. Decl. of Michael G. Seidel (“Seidel Decl.”), ECF No. 32-6, at ¶ 36. Thus, it
explains, disclosure would enable subjects of FBI investigations to circumvent similar currently
used techniques. Id.But a “near-verbatim recitation of the statutory standard is inadequate.” Citizens for
Responsibility and Ethics in Washington v. U.S. Dep’t of Justice,, 746 F.3d 1082, 1102 (D.C. Cir.
2014) (“CREW”). The Court has not been told what procedures are at stake. Id. And the Court
has not been told how disclosure of these documents would reveal such procedures. Id. “Although
Exemption 7(E) sets a low bar for the agency to justify withholding, the agency must at least
provide some explanation of what procedures are involved and how they will be disclosed.” Id.(quotations omitted). Thus, because “[t]he [Seidel] Declaration lacks any case-specific,
meaningful explanation as to how any particular technique, procedure or guideline at issue in this
case would make it easier for individuals to evade the law,” Jett v. FBI, 139 F. Supp. 3d 352, 363
(D.D.C. 2015), the Court will deny its Motion on this point.
Since this case is still ongoing, however, the Court will not close the door to future
affidavits making this showing.
22
V. THE FBI AND OPR PROPERLY CONCLUDED THAT THERE ARE NO REASONABLY
SEGREGABLE PORTIONS OF CERTAIN RESPONSIVE RECORDS
Under FOIA, an agency must disclose “[a]ny reasonable segregable portion of a record”
that is nonexempt. 5 U.S.C. § 552(b). But those nonexempt portions do not have to be disclosed
if they are “inextricably intertwined with exempt portions.” Mead Data Central, Inc. v. U.S. Dep’t
of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). “Agencies are entitled to a presumption that
they complied with the obligation to disclose reasonably segregable material.” Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). “The quantum of evidence required to
overcome that presumption” must be shown by the requesting party. Id.Neese has not come forth with an adequate quantum of evidence. She has not “produce[d]
evidence that would warrant a belief by a reasonable person” that segregation would be possible.
Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004). Rather, she broadly calls
the government’s assertions “conclusory,” and points out that the information on some discs “is
likely information downloaded from Emily Clark’s computer and cellular telephone(s).” Pl.’s
Resp. at 44. But the FBI determined that any nonexempt information was so intertwined with the
exempt information that it could not be reasonably segregated. See id. Indeed, it would take many
resources to produce disjointed words and phrases, which on their own would have no
informational content. Id. The FBI properly concluded it need not do this. See Brown v. Dep’t of
Justice, 734 F. Supp. 2d 99, 110–11 (D.D.C. 2010) (“[D]efendant need not expend substantial time
and resources to yield a product with little, if any, informational value.” (quotations omitted)).
* * *
23
Neese has raised many objections to OPR’s redactions and withholdings. But most fall
short. The Court will thus grant in part Defendant’s Motion for Partial Summary Judgment, ECF
No. 32.
DATE: March 28, 2022
CARL J. NICHOLS
United States District Judge
24