Barouch v. U.S. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
DAVID JACK BAROUCH, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-0129 (ABJ)
)
U.S. DEPARTMENT OF JUSTICE, et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
Plaintiff David Jack Barouch brings this action under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552 (2006), and the Privacy Act, 5 U.S.C. § 552a (2006). Plaintiff’s
complaint challenges the responses to written requests that he made to defendants, the Criminal
Division (“CRM”) of the United States Department of Justice (“DOJ”), the United States
Marshals Service (“USMS”), the Executive Office for United States Attorneys (“EOUSA”), the
Federal Bureau of Prisons (“BOP”), the Bureau of Alcohol, Tobacco, Firearms, and Explosives
(“ATF”), and the Department of Treasury (“Treasury”). 1 In each of his requests, plaintiff sought
all records related to himself. All of the defendant agencies except for Treasury responded to
plaintiff’s requests by conducting searches. Many have disclosed some responsive records, and
all have provided reasons for withholding at least some information.
Defendants have filed two partial motions for summary judgment and dismissal, which
together seek to dispose of this action in its entirety. Fed. Defs.’ Partial Mot. for Summ. J. and
1 Plaintiff also named the Department of Justice and the Parker County Sheriff Department
as defendants to this action. The Court dismissed the Parker County Sheriff Department from
the action by Order of December 12, 2012 [Dkt. # 18].
Dismissal [Dkt. # 15] (“Defs.’ 1st Mot.”); Fed. Defs.’ Supp. Mot. for Summ. J. and Dismissal
[Dkt. # 22] (“Defs.’ 2d Mot.”). Plaintiff opposes both motions, challenging the adequacy of the
agencies’ searches and their withholdings. Resp. and Objection to Fed. Defs.’ Partial Mot. for
Summ. J. and Dismissal [Dkt. # 16] (“Pl.’s 1st Resp.”); Pl.’s Verified Mem. Resp. to Fed. Defs.’
Supplemental Mot. for Summ. J. and Dismissal [Dkt. # 25] (“Pl.’s 2d Resp.”). Plaintiff also
challenges Treasury’s failure to undertake a search. The Court finds that plaintiff has failed to
exhaust his administrative remedies as to some of his claims. As to the others, the Court finds,
based on affidavits and Vaughn indices submitted by the government, that the agencies
conducted adequate searches for responsive documents, but they have not provided adequate
explanations for all of their withholdings. Accordingly, the Court will grant in part and deny in
part defendants’ motions for summary judgment. The Court will direct EOUSA to disclose parts
of four documents that it has withheld in full and will remand to BOP to review the documents it
received from EOUSA after the commencement of this action.
BACKGROUND
Plaintiff is currently incarcerated at the Seagoville Federal Correctional Institution in
Seagoville, Texas. Pl.’s 1st Compl. [Dkt. # 1] (“Compl.”) ¶ 1. In July 2010, he pled guilty to
one count of possession of an unregistered destructive device, in violation of 26 U.S.C.
§§ 5841, 5861(d), and 5871. Minute Order, United States v. David Barouch, No. 4:10-CR-
00099-A(01) (N.D. Tex. July 9, 2010) [Dkt. # 27]. In November 2010, he was sentenced in the
United States District Court for the District of Northern Texas to 120 months in prison.
Judgment, United State, No. 4:10-CR-00099-A(01) (N.D. Tex. Nov. 1, 2010) [Dkt. # 41].
2
By letters dated April and May 2011, 2 plaintiff submitted written requests to CRM,
USMS, EOUSA, BOP, and ATF. Ex. 1 to Decl. of John E. Cunningham III (“Cunningham
Decl.”) [Dkt. # 15-3] at 1 (CRM); Attach. 2 to Decl. of Violet Mack (“Mack Decl.”) [Dkt. # 22-
1] at 1 (BOP); Ex. A to Decl. of David Luczynski (“Luczynski Decl.”) [Dkt. # 22-2] at 1
(EOUSA); Ex. A to Decl. of Stephanie M. Boucher (“1st Boucher Decl.”) [Dkt. # 22-3] at 1
(ATF); Ex. A to Decl. of William E. Bordley (“Bordley Decl.”) [Dkt. # 22-4] at 1 (USMS). All
of the documents sought “full disclosure and release of all files, records, data and/or information
maintained by” each agency under plaintiff’s name. Id. His request included his birthdate, place
of birth, social security number, case numbers for his conviction and appeal, and the district in
which he was convicted. Id. In addition, plaintiff maintains that he submitted an identical FOIA
request to Treasury. 3 Compl. ¶ 12; see also Aff. of Jack Barouch (“Barouch Aff.”), Ex. A to
[Dkt. # 16], ¶ 1.
I. Request to Treasury
Plaintiff claims that Treasury possesses but has withheld documents responsive to his
request. Compl. ¶¶ 5, 22, 25. Defendants claim that Treasury never received a request from
plaintiff. Mem. in Support of Fed. Defs.’ Mot. for Partial Summ. J. and Dismissal [Dkt. # 15-2]
(“Defs.’ 1st Mem.”) at 4. In support of this contention, Treasury has submitted a declaration
from Hugh Gilmore, a supervisory program analyst in Disclosure Services, part of Treasury’s
Departmental Offices, which oversees FOIA compliance for the bureaus of Treasury except for
2 Defendants assert that plaintiff’s FOIA request directed to ATF was not received until
August 2011. Mem. in Support of Fed. Defs.’ Supplemental Mot. for Summ. J. and Dismissal
[Dkt. # 22] (“Defs.’ 2d Mem.”) at 4.
3 All of plaintiff’s letters of request were identical, except that the letters to BOP and ATF
also contained attachments, which identified with more specificity the documents that were the
subjects of plaintiff’s request. Ex. 2 to Mack Decl.; Ex. A to 1st Boucher Decl.
3
the Internal Revenue Service. Declaration of Hugh Gilmore [Dkt. # 15-4] (“Gilmore Decl.”) ¶ 2.
He states that Treasury has conducted a search of its FOIA tracking system to find any requests
submitted under plaintiff’s name, but none were located. Id. ¶ 5.
The declaration also notes that although plaintiff alleges that ATF is an agency within
Treasury, ATF became part of DOJ in 2003. Id. ¶¶ 6–7; see also Homeland Security Act of
2002, Pub. L. No. 107-206, 116 Stat. 2135; Compl. ¶¶ 5, 6, 22, 25 (referring to ATF as a division
of Treasury).
II. Request to CRM
CRM acknowledged receipt of plaintiff’s request by letter dated May 6, 2011.
Cunningham Decl. ¶ 4; see also Ex. 1 to Cunningham Decl. On May 23, 2011, it responded to
the request. Cunningham Decl. ¶ 7; Ex. 2 to Cunningham Decl. The response directed plaintiff
to send another letter to CRM indicating which section of the agency he wanted to be searched,
and specifying the location and dates of his conviction, arrests, and the federal offenses, and any
other applicable timeframes involved. Ex. 2 to Cunningham Decl. By letter dated June 6, 2011,
plaintiff asked that CRM search the “FOIA/PA Unit,” and he responded to CRM’s other
requests. Cunningham Decl. ¶ 8; Ex. 3 to Cunningham Decl. On July 6, 2011, CRM sent
plaintiff a letter informing him that no responsive documents had been found. Cunningham
Decl. ¶ 11; Ex. 5 to Cunningham Decl. The letter also explained plaintiff’s right to appeal
CRM’s determination to DOJ’s Office of Information Policy (“OIP”). Ex. 5 to Cunningham
Decl. On July 12, 2011, plaintiff sent a letter to OIP appealing CRM’s decision. Cunningham
Decl. ¶ 13; Ex. 6 to Cunningham Decl. OIP confirmed receipt of plaintiff’s appeal by letter
dated July 27, 2011, and informed plaintiff by letter dated October 11, 2011 that it had
4
determined that CRM’s search was adequate. Cunningham Decl. ¶¶ 14–15; Exs. 7–8 to
Cunningham Decl.
On April 3, 2012, after plaintiff had filed the instant lawsuit, CRM received one
potentially responsive document from EOUSA because EOUSA had determined that the
document originated with CRM. Cunningham Decl. ¶ 17; Exs. 9–10 to Cunningham Decl. The
document was a July 15, 2005, memorandum (“Richter Memorandum”) from Acting Assistant
Attorney General of CRM, John C. Richter, concerning “[c]harging under 18 U.S.C. 924(c)
where the underlying crime of violence is the possession of the same weapon.” Cunningham
Decl. ¶ 19 (internal quotation marks omitted); Ex. 11 to Cunningham Decl. On April 18, CRM
informed plaintiff by letter that it was withholding the document in part pursuant to 5 U.S.C.
§ 552(b)(5), which permits agencies to withhold from production inter- or intra-agency
documents that would not be available in litigation. Cunningham Decl. ¶ 19; Ex. 11 to
Cunningham Decl. This letter also informed plaintiff that he could appeal the decision to OIP.
Ex. 11 to Cunningham Decl.
III. Request to USMS
On May 17, 2011, USMS’s Office of General Counsel (“OGC”) received plaintiff’s
request. Bordley Decl. ¶ 2; Ex. A to Bordley Decl. By letter dated May 20, OGC acknowledged
receipt of plaintiff’s letter and informed him that the office had begun its search. Bordley Decl.
¶ 3; Ex. B to Bordley Decl. According to William E. Bordley, who is the Associate General
Counsel and Freedom of Information/Privacy Act Officer for USMS, OGC searched the Prisoner
Processing and Population Management/Prisoner Tracking System (PPM/PTS), JUSTICE/USM-
005 and the Warrant Information Network (WIN), JUSTICE/USM-007. Bordley Decl. ¶¶ 1, 5.
These resources comprise the electronic and paper records concerning USMS prisoners and
5
others investigated by USMS pursuant to an arrest warrant or other judicial process. Id. ¶ 5.
Following a search of these records, OGC identified 28 pages of material indexed to plaintiff’s
name, located in the Northern District of Texas – the relevant location identified by plaintiff in
his request. Id.; Ex. A to Bordley Decl.
By letter dated June 21, 2011, OGC informed plaintiff that it was releasing twenty-eight
pages of documents to him. Bordley Decl. ¶ 6; Ex. C to Bordley Decl. Of these pages, fifteen
were released in their entirety, and thirteen were released with redactions pursuant to 5 U.S.C.
§ 552(b)(7)(C) (“Exemption (b)(7)(C)”) and 5 U.S.C. § 552(b)(7)(E) (“Exemption (b)(7)(E)”).
Bordley Decl. ¶ 6; see also 5 U.S.C. §§ 552(b)(7)(C), (b)(7)(E) (2012). The letter also informed
plaintiff that he could appeal USMS’s determination to OIP. Ex. C to Bordley Decl. Plaintiff
filed an appeal by letter dated July 1, 2011. Bordley Decl. ¶ 7; Ex. D to Bordley Decl. By letter
dated September 21, 2011, OIP informed plaintiff that it was affirming the decision. Ex. E to
Bordley Decl.
USMS’s Vaughn index describes the information withheld and lists the basis for the
withholdings. Bordley Decl. ¶¶ 11–12. USMS relied on Exemption (b)(7)(C) to withhold
information from twelve pages of the responsive documents. Id. ¶ 12. In each instance, it was
invoked to excise the name, address, prison identification number, and/or registration number of
third parties, government employees, law enforcement officers, USMS employees and/or other
prisoners. Id. USMS also withheld the secure website address from one page also pursuant to
Exemption (b)(7)(E). Id.IV. Request to ATF
According to a declaration by the Chief of ATF’s Disclosure Division, Stephanie M.
Boucher, the agency received a letter from plaintiff on August 1, 2011, that was dated July 20,
6
2011. 1st Boucher Decl. ¶¶ 1, 3. The letter indicated that plaintiff had filed a formal FOIA
request more than thirty days prior but had not received a response. Ex. A to 1st Boucher Decl.
Enclosed along with the letter was a copy of a request written by plaintiff under FOIA and the
Privacy Act, dated April 26, 2011, as well as two attachments to the request. Id. The first
attachment is a document stating that the request includes investigative records in the possession
of the Colleybille [sic], Keller, and Fort Worth Police Departments, which – according to the
attachment – operated as sub-agents for ATF in plaintiff’s criminal case. Id. The second
attachment is a document stating that the request includes (1) a microcassette recording of an
October 2010 interview of plaintiff by ATF Agent Riddle with plaintiff’s then-counsel Mic
Mickelson, (2) a tape recording of a November 2010 interview with an inmate that was
conducted by ATF Agent Riddle and an unnamed Texas Ranger, and was attended by plaintiff,
and (3) a videotape recording of plaintiff purchasing two salad bowls from Bed, Bath, and
Beyond in roughly April or May of 2010. Id. By letter dated August 2, 2011, ATF responded to
plaintiff to inform him that ATF had received and would process his FOIA request dated August
1, but that it had not previously received a request from him. 1st Boucher Decl. ¶ 4; Ex. B to 1st
Boucher Decl.
According to the Boucher declaration, the Disclosure Division concluded that release of
the records sought could reasonably be expected to interfere with ongoing law enforcement
proceedings. 1st Boucher Decl. ¶ 5. Accordingly, by letter of August 3, 2011, ATF denied
plaintiff’s request pursuant to 5 U.S.C. § 552(b)(7)(A) (“Exemption (b)(7)(A)”). 1st Boucher
Decl. ¶ 5; Ex. C to 1st Boucher Decl.; see also 5 U.S.C. § 552(b)(7)(A) (2012). The denial left
open the option for ATF to invoke additional exemptions to support withholdings in the future.
1st Boucher Decl. ¶ 5; Ex. C to 1st Boucher Decl. The letter also informed plaintiff that he could
7
appeal the denial to OIP. 1st Boucher Decl. ¶ 5; Ex. C to 1st Boucher Decl. After August 3,
2011, ATF notified plaintiff of that because his appeal from his criminal case had concluded, the
agency intended to release documents that had been previously withheld. Decl. of Stephanie M.
Boucher [Dkt. # 26-1] ¶ 3.
According to Boucher, her staff contacted OIP after plaintiff filed the complaint in the
instant case to determine whether plaintiff had filed an administrative appeal of ATF’s actions.
1st Boucher Decl. ¶ 8. OIP informed Boucher’s staff that it had no records of an appeal from
plaintiff. Id.In addition, on April 10, 2012, ATF received potentially responsive documents from
EOUSA because EOUSA had determined that the documents originated with ATF. 1st Boucher
Decl. ¶ 6; Ex. D to 1st Boucher Decl. By letter dated April 12, 2012, ATF notified plaintiff that
it was partially withholding the documents under Exemption (b)(7)(C). 1st Boucher Decl. ¶ 7;
Ex. E to 1st Boucher Decl.
V. Request to BOP
By letter dated April 26, 2011, plaintiff submitted a Privacy Act/FOIA request to BOP.
Mack Decl. ¶ 4; Attach. 2 to Mack Decl. The letter was directed to BOP’s Office of General
Counsel FOIA/PA Section and was received by that office on May 17, 2011. Mack Decl. ¶ 4;
Attach. 2 to Mack Decl. According to BOP Paralegal Specialist Violate Mack, the FOIA/PA
Section staff determined that the appropriate location for plaintiff’s search request was BOP’s
South Central Region. Mack Decl. ¶ 5. Accordingly, on May 27, 2011, FOIA/PA Section staff
uploaded the request letter into Metastorm BPM – the Bureau’s FOIA database – for processing
by the SCRO Regional Counsel’s Office. Id. According to Mack, the now-retired SCRO
Paralegal Specialist, Larry Collins, determined that the form of plaintiff’s request was typical of
8
forms used by inmates at particular institutions, except that plaintiff had also appended an
additional page specifying in more detail the materials he sought. Id. ¶ 6; Attach. 2 to Mack
Decl. Those specific materials were: “[t]elephonic recordings or transcript[s] of telephonic
recordings” from (a) the Parker County detention center from May 1, 2010 through July 15,
2010; (b) FDC Fort Worth from July 1, 2010 through November 1, 2010; and (c) FCI Seagoville
from October 28, 2010 to present, as well as any Parker County Detention Center or FDC Fort
Worth inmate files concerning plaintiff not currently in the central file at Seagoville. Attach. 2 to
Mack Decl.
On August 14, 2011, BOP’s Office of General Counsel, Freedom of Information
division received another letter from plaintiff. Mack Decl. ¶ 14. This letter contained (1) a letter
from plaintiff to the BOP FOIA section, dated July 20, 2011, requesting an update on the status
of his April 26, 2011 FOIA request to the BOP Office of Central Counsel FOIA/PA Section,
with a copy of the April 26 request attached, (2) a letter dated July 27, 2011, from BOP Legal
Instruments Examiner Paula Champion, indicating that she had received a letter from plaintiff
requesting records maintained by BOP at the Federal Correctional Institution, Fort Worth, Texas,
and informing plaintiff that if his request was intended to be filed under the Privacy and Freedom
of Information Acts, it should be sent to BOP’s Office of General Counsel, Freedom of
Information Division, and (3) a FOIA request by plaintiff, identical to the April 26, 2011 request,
but addressed to the Office of General Counsel, Freedom of Information, Bureau of Prisons
Central Office and dated July 30, 2011. Mack Decl. ¶ 14; Attach. 5 to Mack Decl.
According to Mack, Collins e-mailed FCI Fort Worth’s staff on June 7, 2011, requesting
documents responsive to plaintiff’s request. Mack Decl. ¶ 7. In his email, Collins noted that
plaintiff had been a “holdover” inmate – that is, a BOP inmate not yet transferred to his
9
designated institution – at Fort Worth, and that he was specifically requesting all recorded
telephone calls from Fort Worth during the specified timeframe. Id. & n.2. Collins also sent an
e-mail on June 7, 2011 to FCI Seagoville’s Legal Liaison requesting responsive records,
specifically including recorded telephone calls for the requested period and any available
telephone transactional data concerning plaintiff. Id. ¶ 8. 4
The Mack declarations states that because the content of plaintiff’s FOIA letter was the
same or similar to letters that BOP receives frequently from other inmates, BOP interpreted the
letter as a “form letter” rather than a request for all documents maintained in the central and
medical files of the requesting inmate. Id. ¶ 11 & n.5. To determine the scope of plaintiff’s
request, BOP looked to the more specific requests delineated in the attachments to plaintiff’s
letter. Id. ¶ 11. Since the requests described in the attachments were limited to records
maintained by the Parker County Detention Center and FCI Fort Worth that would not be found
in plaintiff’s central file maintained at FCI Seagoville, BOP determined that the scope of
plaintiff’s request did not extend to all documents in his central file. Id. And since the requests
were unrelated to any records that would be maintained in plaintiff’s medical file, BOP
determined that the scope did not extend to all documents in his medical file. Id.According to Mack, on June 8, 2011, FCI Fort Worth staff sent Collins the transactional
data from plaintiff’s use of the Inmate Telephone System (“ITS”) but informed him that it had
found no recorded telephone conversations and no detainee files. Mack Decl. ¶ 12. On June 16,
2011, FCI Seagoville staff informed Collins that it would forward a CD containing a copy of the
transactional data for plaintiff’s ITS usage. Id. ¶ 13. The CD also contained recorded telephone
conversations. Id.4 No similar request was made to the Parker County Detention Center as it is not a BOP
facility. Mack Decl. ¶ 9.
10
On August 31, 2011, the SCRO Regional Counsel responded to plaintiff’s FOIA
request. Mack Decl. ¶ 15; Attach 6 to Mack Decl. The letter indicated the following:
Parker County Detention Center records are not subject to FOIA requests and not
within BOP’s jurisdiction.
BOP located no detainee file concerning plaintiff at FCI Fort Worth.
In consideration of the specific requests noted in the attachments to plaintiff’s
request letter, BOP declined to interpret the scope of the request as including all
documents in the central and medical files; however, plaintiff was invited to provide
BOP with a clearer description of the records sought.
BOP’s search turned up 113 recorded telephone conversations from FCI Seagoville
between the dates of December 18, 2010 and June 6, 2011.
No recorded telephone conversations were found at FCI Fort Worth.
Recorded telephone conversations are maintained on the TRUFONE system for 180
days, after which they are automatically deleted.
Recorded telephone conversations cannot be released without consent from all
recorded parties and are, therefore, exempt from disclosure under 5 U.S.C.
§§ 552(b)(6) and (b)(7)(C).
Sixteen pages of telephone transactional data were released to plaintiff.
Plaintiff could appeal BOP’s response to his request by filing a written appeal with
OIP.
Mack Decl. ¶ 15; Attach. 6 to Mack Decl.
By letter dated September 29, 2011, plaintiff requested preservation of the telephone
conversations identified in BOP’s response. Mack Decl. ¶ 16; Attach. 7 to Mack Decl. SCRO
Regional Counsel confirmed by letter dated October 24, 2011, that the records would be
preserved through December 2017 per the BOP Records and Information Disposition Schedule.
Mack Decl. ¶ 16; Attach. 8 to Mack Decl.
On March 13, 2012, after BOP received no correspondence indicating that plaintiff had
elected to file an appeal, Collins sent an e-mail to an OIP representative, asking for a
11
confirmation that plaintiff had not yet appealed the decision. Mack Decl. ¶¶ 18–19. On March
27, Collins received an email response indicating that OIP had no record of an appeal. Mack
Decl. ¶ 20; Attach. 9 to Mack Decl.
At the time that plaintiff filed the instant lawsuit, BOP had informed plaintiff only that it
was withholding the records described in BOP’s August 31, 2011 letter. See Attach. 6 to Mack
Decl. However, after the initiation of this action, EOUSA referred a number of additional pages
to BOP to process. Luczynski Decl. ¶ 6.
VI. Request to EOUSA
On May 17, 2011, EOUSA received a letter from plaintiff requesting, pursuant to the
Privacy Act and FOIA, copies of “all files, records, data, and/or information” maintained by
EOUSA under the name David Barouch. 5 Luczynski Decl. ¶ 4; Ex. A to Luczynski Decl. On
May 31, 2011, EOUSA acknowledged receipt of plaintiff’s letter. Luczynski Decl. ¶ 5; Ex. B to
Luczynski Decl. EOUSA’s letter informed plaintiff that, although the agency attempted to
process most requests within twenty days, “Project Requests” – including requests about oneself
in criminal case files – usually took about nine months. Ex. B to Luczynski Decl.
According to David Luczynski, an EOUSA attorney advisor who, among other things,
reviews FOIA and Privacy Act requests submitted to EOUSA and prepares responses, EOUSA
began its search in the Northern District of Texas, which was specified as the pertinent location
in plaintiff’s initial inquiry. Luczynski Decl. ¶¶ 1, 8; Ex. A to Luczynski Decl. EOUSA’s search
involved reviewing the records from plaintiff’s case, sending email requests for responsive
documents to the Assistant United States Attorney in the Criminal Division, and searching the
5 Although the affidavit submitted in support of EOUSA’s motion to dismiss repeatedly
refers to plaintiff’s letter as a “FOIA request,” the letter cites both FOIA and the Privacy Act as
the bases for plaintiff’s request. See Luczynski Decl. ¶¶ 3, 6, 9, 11; see also Ex. A to Luczynski
Decl.
12
LIONS system – used by the United States Attorney Offices to monitor cases and retrieve files –
using plaintiff’s name as the search term. Luczynski Decl. ¶ 8
By letter dated March 26, 2012 – after the initiation of this case – EOUSA responded to
plaintiff, indicating that it had identified relevant documents and was releasing 159 pages in full,
releasing 50 pages in part, and withholding 282 pages in full. Compl. at 1; Luczynski Decl. ¶ 6;
Ex. C to Luczynski Decl. The letter informed plaintiff that documents were withheld from
production under the FOIA exemptions codified at 5 U.S.C. § 552(b)(3) (“Exemption (b)(3)”), 5
U.S.C. § 552(b)(5) (“Exemption (b)(5)”), 5 U.S.C. § 552(b)(6) (“Exemption (b)(6)”), and
Exemption (b)(7)(C), and under the Privacy Act exemption codified at 5 U.S.C. § 552a(j)(2)
(“Exemption (j)(2)”). Luczynski Decl. ¶ 6. Ex. C to Luczynski Decl.; see also Vaughn Index,
Attach. to Luczynski Decl. The letter also informed plaintiff that additional potentially
responsive documents were being referred to ATF, CRM, and BOP. Luczynski Decl. ¶ 6; Ex. C
to Luczynski Decl. Finally, the letter stated that plaintiff could appeal the decision to OIP within
sixty days. Luczynski Decl. ¶ 6; Ex. C to Luczynski Decl.
VII. Procedural Background
Plaintiff, acting pro se, filed the complaint in this action on January 23, 2012, against
DOJ, USMS, the DOJ Criminal Division, EOUSA, BOP, Treasury, ATF, and the Parker County
Sheriff Department. Compl. at 1. The complaint alleges that the named defendants have “failed,
refused, and neglected to comply with Plaintiff’s reasonable requests for records, documents,
audio tapes and jail tape recordings, and discovery.” Compl. ¶ 15. Plaintiff seeks an order
compelling disclosure of his “entire record of investigation” for the years 2010 and 2011.
Compl. ¶ 17. On December 12, 2012, the Court dismissed the Parker County Sheriff
13
Department, sua sponte, because the local entity is not subject to the provisions of FOIA. [Dkt.
# 18].
Defendants filed two partial motions for summary judgment or dismissal that together
would dispose of the entire case. Defs.’ 1st Mot.; Defs.’ 2d Mot. The first motion, filed on
November 9, 2012, seeks summary judgment or dismissal with respect to plaintiff’s claims
against Treasury and CRM. Defs.’ 1st Mot. Plaintiff filed an opposition on November 27, 2012.
Pl.’s 1st Resp. Defendants filed a reply in support of their motion on December 21, 2012. Defs.’
Reply to Pl.’s Resp. and Objection to Federal Defs.’ Mot. for Partial Summ. J. and Dismissal
[Dkt. # 20]. On January 17, 2013, plaintiff filed a surreply to defendants’ response. Pl.’s Sur-
Resp. to Defs.’ Reply to Pl.’s Resp. and Objection to Federal Defs.’ Mot. for Partial Summ. J.
[Dkt. # 21] (“Pl.’s Sur-Resp.”). The second motion, filed on February 7, 2013, seeks summary
judgment or dismissal with respect to the claims against the remaining federal defendants: ATF,
BOP, USMS, and EOUSA. Defs.’ 2d Mot. Plaintiff responded on March 11, 2013. Pl.’s 2d
Resp. Defendants filed a reply in support of their motion on March 22, 2013. Defs.’ Reply to
Pl.’s Verified Mem. Response to Fed. Defs.’ Supp. Mot. for Summ. J. and Dismissal [Dkt. # 26]
(“Defs.’ Reply”).
On July 25, 2013, upon review of the parties’ submissions, the Court ordered defendants
to deliver to chambers for in camera inspection four documents that had been withheld by
defendant EOUSA. Minute Order (July 25, 2013), citing Ray v. Turner, 587 F.2d 1187, 1195
(D.C. Cir. 1978). EOUSA submitted the four documents to the Court in camera on August 2,
2013. The Court has reviewed these documents along with the parties’ memoranda and
pleadings.
14
STANDARD OF REVIEW
Summary judgment is appropriate “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). The party seeking summary judgment bears the “initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat
summary judgment, the non-moving party must “designate specific facts showing that there is a
genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual
dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the
non-moving party; a fact is only “material” if it is capable of affecting the outcome of the
litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In
assessing a party's motion, the court must “view the facts and draw reasonable inferences ‘in the
light most favorable to the party opposing the summary judgment motion.’” Scott v. Harris, 550
U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654,
655 (1962) (per curiam).
While the same legal framework applies in every case, where a plaintiff proceeds pro se,
“the Court must take particular care to construe the plaintiff's filings liberally, for such
complaints are held ‘to less stringent standards than formal pleadings drafted by lawyers.’”
Cheeks v. Fort Myer Constr. Co., 722 F. Supp. 2d 93, 107 (D.D.C. 2010), quoting Haines v.
Kerner, 404 U.S. 519, 520–21 (1972).
15
ANALYSIS
I. The Court will grant summary judgment to defendants for all claims against
Treasury
Treasury moves for summary judgment on the grounds that there is no evidence that
plaintiff submitted a FOIA request to the agency. 6 Defs.’ 1st Mem. at 2. Treasury’s declarant,
Gilmore, describes Treasury’s FOIA tracking system, Gilmore Decl. ¶ 4, and he states that upon
conducting a search of that tracking system under plaintiff’s name, he was unable to find a
request. Id. ¶ 5.
Plaintiff has failed to produce any evidence that he submitted a FOIA or Privacy Act
request to Treasury, let alone provide a copy of the request itself to the Court. Moreover,
plaintiff has continually wrongly characterized ATF as a bureau of Treasury, Compl. ¶¶ 5–6, 22,
25, which suggests that he may have been under the impression that he was seeking records from
Treasury when he submitted his request to ATF. Because there is no genuine dispute that no
documents were produced to plaintiff by Treasury because Treasury did not receive a FOIA
request from him, Gilmore Decl. ¶¶ 4–5, the Court will grant Treasury’s motion for summary
judgment.
II. The Court will grant in part and deny in part defendants’ motions for
summary judgment with respect to plaintiff’s claims arising under FOIA
The purpose of FOIA is to require the release of government records upon request and to
“ensure an informed citizenry, vital to the functioning of a democratic society, needed to check
6 Treasury also moves on these grounds under Federal Rule of Civil Procedure 12(b)(6).
Defs.’ 1st Mem. at 4. In his opposition to Treasury’s motion, plaintiff disputes Treasury’s
assertion that it never received his request. Pl.’s 1st Resp. at 1. Because the Court relies on
evidence outside the complaint to resolve this dispute, the Court will decide the claim under Rule
56, not 12(b)(6). See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) . . . , matters
outside the pleadings are presented to and not excluded by the court, the motion must be treated
as one for summary judgment under Rule 56.”).
16
against corruption and to hold the governors accountable to the governed.” Nat’l Labor
Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). At the same time,
Congress recognized “that legitimate governmental and private interests could be harmed by
release of certain types of information and provided nine specific exemptions under which
disclosure could be refused.” FBI v. Abramson, 456 U.S. 615, 621 (1982); see also Ctr. for Nat’l
Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003) (“FOIA represents a balance struck by
Congress between the public’s right to know and the government’s legitimate interest in keeping
certain information confidential.”). The Supreme Court has instructed that “FOIA exemptions
are to be narrowly construed.” Abramson, 456 U.S. at 630.
To prevail at the summary judgment phase in a typical FOIA action, an agency must
satisfy two elements. Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246,
252 (D.D.C. 2005). First, the agency must demonstrate that it has 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). Second, an agency must show that “materials that are withheld . . . fall within a FOIA
statutory exemption.” Leadership Conference on Rights, 404 F. Supp. 2d at 252. After asserting
and explaining its exemptions, an agency must release “[a]ny reasonably segregable portion of a
record” and provide it to the requesting party, “after deletion of the portions which are exempt.”
5 U.S.C. § 552(b)(9).
The district court reviews the agency’s action de novo, and “the burden is on the agency
to sustain its action.” 5 U.S.C. § 552(a)(4)(B); accord Military Audit Project v. Casey, 656 F.2d
724, 738 (D.C. Cir. 1981). Once the case comes to court, “FOIA cases are typically and
appropriately decided on motions for summary judgment.” Moore v. Bush, 601 F. Supp. 2d 6, 12
17
(D.D.C. 2009). In any motion for summary judgment, the Court “must view the evidence in the
light most favorable to the nonmoving party, draw all reasonable inferences in his favor, and
eschew making credibility determinations or weighing the evidence.” Montgomery v. Chao, 546
F.3d 703, 706 (D.C. Cir. 2008); see also Anderson, 477 U.S. at 255 (1986). However, where a
plaintiff has not provided evidence that an agency acted in bad faith, “a court may award
summary judgment solely on the basis of information provided by the agency in declarations.”
Moore, 601 F. Supp. 2d at 12.
A. Exhaustion of Administrative Remedies
Once a FOIA request has been processed, a plaintiff is required to exhaust all
administrative remedies before bringing an action to compel disclosure of documents. See 5
U.S.C. § 552(a)(6); 28 C.F.R. § 16.9(c); Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004).
Failure to exhaust such remedies bars the lawsuit. See Banks v. DOJ, 813 F. Supp. 2d 132, 138–
39 (D.D.C. 2011) (granting agency’s motion for summary judgment in FOIA action where
plaintiff failed to file an administrative appeal before filing the lawsuit); Schwaner v. Dep’t of
Army, 696 F. Supp. 2d 77, 81 (D.D.C. 2010) (same).
However, because exhaustion is not a jurisdictional bar under FOIA, courts will deem a
plaintiff to have constructively exhausted his administrative remedies with respect to a FOIA
claim when an agency “fails to comply with the applicable time limit provisions” of FOIA. 5
U.S.C. § 552(a)(6)(C)(i). The agency has twenty days to make an initial determination, and
following an administrative appeal of a FOIA decision, twenty days to make a determination on
the appeal. 5 U.S.C. § 552(a)(6)(A)(i)–(ii). A requester will be found to have “constructively
exhausted” his administrative remedies if, after the twenty days has expired but before the
agency responds to his request, he files an action in federal court complaining that the agency
18
failed to respond to his FOIA request within the applicable time limit. See 5 U.S.C.
§ 552(a)(6)(C)(i) (2012); 28 C.F.R. § 16.9(a), (c) (2012); see also Oglesby, 920 F.2d at 70–71.
Constructive exhaustion is applied narrowly: courts in this district have declined to find that a
requestor has constructively exhausted his administrative remedies if the agency responds to his
request before he brings suit, even if the agency’s response is outside the statutory time limit.
See, e.g., Judicial Watch, Inc. v. U.S. Dept. of Energy, 888 F. Supp. 2d 189, 192–193 (D.D.C.
2012).
1. EOUSA
At the time plaintiff filed the complaint in this action, EOUSA had not responded to his
request for documents, despite the expiration of the mandatory statutory time limit for agency
response under FOIA. Defs.’ 2d Mem. at 17 n.8. EOUSA concedes that plaintiff’s
“administrative remedies were constructively exhausted by the time he filed this lawsuit.” Id.Accordingly, the Court finds that plaintiff exhausted his administrative remedies with respect to
his claims against EOUSA under FOIA.
2. ATF
But the ATF has moved to dismiss the FOIA claims against it under Federal Rule of Civil
Procedure 12(b)(6) on the basis that plaintiff failed to exhaust his administrative remedies. 7
Defs.’ 2d Mem. at 4–5. ATF issued two different decisions in response to plaintiff’s request: (1)
it denied his August 3, 2011 request because it did not find any responsive documents; and (2) it
later disclosed redacted versions of documents that EOUSA had referred to it after the inception
7 To this end, ATF relies on an affidavit attesting to the fact that plaintiff could have
appealed. Defs.’ 2d Mem. at 4–5; 1st Boucher Decl. ¶¶ 7–8. Although ATF styles its motion as
a Rule 12(b)(6) motion, its reliance on the affidavit requires this Court to treat the motion as a
Rule 56 motion. Fed. R. Civ. P. 12(d). See Hamilton v. Geithner, 743 F. Supp. 2d 1, 8 (D.D.C.
2010); Lane v. Tschetter, Civ. A. No. 05-1414(EGS), 2007 WL 2007493, at *2 (D.D.C. July 10,
2007).
19
of this action. 1st Boucher Decl ¶¶ 5, 7. ATF claims that plaintiff has failed to exhaust the
available administrative remedies under FOIA without distinguishing between these two
different determinations. Defs.’ 2d Mem. at 4–5. Because plaintiff has not appealed either of
these decisions to OIP, ATF maintains, judicial review of its decisions is unavailable. Defs.’ 2d
Mem. at 5. For his part, plaintiff maintains that “it would be futile to undergo the deliberative
and fruitless delay of further administrative review.” Pl.’s 2d Resp. at 36. The Court will
address each of ATF’s decisions separately.
a. Plaintiff’s claim with respect to ATF’s August 3, 2011 decision is
barred
With respect to the first set of documents, the Court agrees with ATF that plaintiff’s
claim under FOIA is barred for failure to exhaust his administrative remedies. When plaintiff
received notification – in the letter dated August 3, 2011 – that his initial request to ATF had
been denied, he was notified that he could appeal the decision to OIP. Ex. C to 1st Boucher
Decl. Plaintiff did not do so. 1st Boucher Decl. ¶ 8.
Plaintiff is correct that in certain contexts, “the exhaustion requirement may be waived by
the agency, or disregarded by the court when application of the doctrine would be futile.” Cutler
v. Hayes, 818 F.2d 879, 891 (D.C. Cir. 1987). “[S]till, as a jurisprudential doctrine, failure to
exhaust precludes judicial review if the purposes of exhaustion and the particular administrative
scheme support such a bar.” Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (internal
quotation marks omitted), quoting Hidalgo v. FBI, 344 F.3d 1256, 1258–59 (D.C. Cir. 2003).
And “the FOIA’s administrative scheme favors treating failure to exhaust as a bar to judicial
review.” Hidalgo, 344 F.3d at 1259. Moreover, permitting plaintiff to obtain judicial review
without exhausting his administrative remedies in this case would undermine the purpose for the
exhaustion requirement: “preventing premature interference with agency processes, affording
20
the parties and the courts the benefit of the agency’s experience and expertise, or compiling a
record which is adequate for judicial review.” Id. (alterations and internal quotation marks
omitted), quoting Ryan v. Bentsen, 12 F.3d 245, 247 (D.C. Cir. 1993).
Therefore, with respect to ATF’s August 3, 2011 determination, defendants’ motion to
dismiss, construed as a motion for summary judgment, will be granted.
b. Plaintiff’s failure to file an administrative appeal of ATF’s
determination under FOIA with respect to the documents referred to it
by the EOUSA does not bar this Court’s review of the merits of the
determination
The Court, however, finds a distinction between the challenges to ATF’s determination
regarding the documents that ATF uncovered in its initial search and the determination on the
documents referred to ATF by EOUSA after the initiation of this action. Plaintiff was first
informed of his right to appeal ATF’s decision regarding the documents referred to it by EOUSA
by letter dated April 12, 2012, after plaintiff had already filed his complaint in this Court. Ex. E
to 1st Boucher Decl. In other words, when plaintiff filed the instant lawsuit, there was no
administrative remedy available for plaintiff to exhaust regarding these documents. See
Luczynski Decl. ¶ 6 (showing EOUSA referred documents to ATF after plaintiff filed suit).
It is true that plaintiff did not exhaust his administrative remedies with respect to these
documents in a literal sense. But a FOIA requester will be deemed to have “constructively
exhausted” his administrative remedies “if the agency fails to comply with the applicable time
limit provisions.” 5 U.S.C. § 552(a)(6)(C)(i). The documents processed by ATF were actually
in the possession of EOUSA, which had not responded to plaintiff’s request when plaintiff filed
his complaint in this action, despite the expiration of the applicable time limit for the agency to
respond. See, e.g., Oglesby, 920 F.2d at 65–66. EOUSA concedes this. Defs.’ 2d Mem. at 17
n.8. It would be anomalous to review plaintiff’s challenges to EOUSA’s withholdings of
21
documents that were identified by EOUSA in the spring of 2012 and that were processed by
EOUSA, but to decline review on exhaustion grounds the determinations of other agencies to
which EOUSA sent some of the documents it identified at the same time. Compare Defs.’ 2d
Mem. at 17 n.8 (conceding administrative remedies were constructively exhausted) with 1st
Boucher Decl. ¶ 8 (asserting that plaintiff has failed to exhaust his administrative remedies with
respect to his ATF request). Since the exhaustion requirement under FOIA is not jurisdictional,
Hidalgo, 344 F.3d at 1258, the Court finds that plaintiff has constructively exhausted his
administrative remedies with respect to the documents uncovered by EOUSA after the initiation
of this action, regardless of whether they were processed by EOUSA or by another agency, such
as ATF. Accordingly, the Court finds that plaintiff’s challenge to ATF’s determination on the
documents it received from EOUSA is not barred for failure to exhaust administrative remedies.
3. BOP
a. The Court is barred from reviewing plaintiff’s challenge to BOP’s
August 31, 2011 determination because plaintiff failed to exhaust his
administrative remedies with respect to that determination
BOP argues that plaintiff is barred from seeking judicial review of BOP’s response to his
FOIA request because he failed to exhaust all administrative remedies before filing the instant
suit. Defs.’ 2d Mem. at 9. Plaintiff argues that any further administrative review would be
“futile.” Pl.’s 2d Resp. at 36.
With respect at least to the documents that were the subject of BOP’s August 31, 2011
letter, plaintiff’s request differs little in relevant respects from his request to ATF: Plaintiff was
informed on August 31, 2011, that certain documents were being released to plaintiff, that others
were being withheld, and that he was entitled to an administrative appeal. Mack Decl. ¶ 15;
Attach. 6 to Mack Decl. In addition, the letter informed plaintiff that he might obtain additional
22
documents by specifying that he also sought the records located in his central and medical files.
Mack Decl. ¶ 15; Attach. 6 to Mack Decl. Plaintiff responded to BOP on September 29, 2011,
but he did not file an administrative appeal with OIP. Mack Decl. ¶¶ 16, 20; Attach. 7 to Mack
Decl.; Attach. 9 to Mack Decl. Plaintiff’s conclusory characterization of further administrative
review as “futile” is insufficient to overcome the rule that exhaustion of administrative remedies
is a prerequisite to judicial review in this context for the same reasons that the Court discussed
with respect to ATF. Accordingly, the Court is barred from reviewing plaintiff’s challenge to
BOP’s August 31, 2011 determination.
b. BOP must identify which documents were referred to it by EOUSA
and produce them or explain its basis for withholding them
Defendants argue that that plaintiff’s challenge to BOP’s withholding of the documents
referred to it by EOUSA after the initiation of this action is also barred because he failed to
exhaust his administrative remedies. Defs.’ 2d Mem. at 17 n.7. The Court finds for the same
reasons discussed above with respect to ATF that plaintiff has constructively exhausted his
administrative remedies, and the Court may therefore address the merits of his claim.
Moreover, BOP has yet to produce to plaintiff the documents referred to it by EOUSA or
to explain the basis for its withholdings. See generally Mack Decl. (making no reference to
documents referred to it by EOUSA). Consequently, plaintiff has not received any determination
on the referred documents, despite the fact that he had constructively exhausted his
administrative remedies. See Oglesby, 920 F.2d at 70–71. Accordingly, the Court will remand
to BOP with the direction that it either produce the documents referred to it by EOUSA to
plaintiff or justify any withholdings. The FOIA claims that remain, then, are against CRM,
USMS, EOUSA, and ATF for its handling of records transmitted to it by EOUSA.
23
B. The agencies’ searches were adequate
In pursuing those claims, plaintiff challenges the adequacy of the agencies’ searches. 8
Compl. ¶ 15; Pl.’s 1st Resp. at 3; Pl.’s 2d Resp. at 8–13. The Court finds that each of these
agencies’ searches was adequate.
To prevail in a FOIA case, the agency must demonstrate that it has 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.” Ogelsby, 920 F.2d at 68. “[A]t the summary
judgment phase, an agency must set forth sufficient information in its affidavits for a court to
determine if the search was adequate.” Nation Magazine, Wash. Bureau v. U.S. Customs Serv.,
71 F.3d 885, 890 (D.C. Cir. 1995), citing Oglesby, 920 F.2d at 68. Such agency affidavits
attesting to a reasonable search “are afforded a presumption of good faith[,]” Defenders of
Wildlife v. U.S. Dep’t of Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004), and “can be rebutted only
‘with evidence that the agency’s search was not made in good faith.’” Id., quoting Trans Union
LLC v. Fed. Trade Comm’n, 141 F. Supp. 2d 62, 69 (D.D.C. 2001).
1. CRM
CRM maintains that it conducted an adequate search for records responsive to plaintiff’s
request that was reasonably calculated to uncover all relevant documents. Defs.’ Reply at 4.
8 Defendants argue that plaintiff waived any challenge to CRM’s search by not raising the
issue in his opposition to first dispositive motion. Defs.’ Reply at 5. As discussed, where, as
here, a plaintiff appears pro se, “the Court must take particular care to construe the plaintiff's
filings liberally, for such complaints are held ‘to less stringent standards than formal pleadings
drafted by lawyers.’” Cheeks, 722 F. Supp. 2d at 107, quoting Haines, 404 U.S. at 520–21. The
Court will construe plaintiff’s assertion in his opposition to the original dispositive motion that to
date, “defendants continue to hide, suppress, and otherwise fail to identify” responsive records as
an objection to the adequacy of defendants’ search. Pl.’s 1st Resp. at 3 (emphasis added).
24
Plaintiff disputes this assertion, in part contending that defendants’ failure to locate the three
missing audiotapes demonstrates the inadequacy of the search. Pl.’s 2d Resp. at 10–11.
To show that CRM performed adequate searches for responsive records, defendants
submitted a declaration by John Cunningham III – a Trial Attorney in the CRM currently
assigned to the FOIA and Privacy Act Unit. Cunningham Decl. ¶ 1. The Cunningham
declaration states that, as a general practice, CRM searches its Central Criminal Division Index
File (“CRM-001”) in response to FOIA requests. Id. ¶ 9. The declaration further states that
CRM searched CRM-001 as well as the CRM oracle menu – the Case Automated Tracking
System (“CATS”). Id. ¶ 10. CRM used plaintiff’s name as a search term. Ex. 4 to Cunningham
Decl. In addition, since plaintiff had indicated in his submission of materials to CRM that the
section of CRM that he reasonably believed might contain responsive records was the FOIA and
Privacy Act Unit of the Office of Enforcement Operations, CRM specifically searched that unit’s
records. Cunningham Decl. ¶ 9; Ex. 3 to Cunningham Decl. The Cunningham declaration also
indicates that it is common for CRM to find no records responsive to a federal inmate’s Privacy
Act request because most federal criminal cases are prosecuted by EOUSA. Cunningham Decl.
¶ 12. This affidavit therefore establishes that CRM searched the databases that were likely to
turn up documents responsive to plaintiff’s requests using search terms that correspond to the
scope of the requests.
Plaintiff specifically challenges CRM’s search on the basis that after informing him that
it had found no responsive documents, it later “admitted” the existence of one document that had
originated with CRM. Pl.’s Sur-Resp. to Def.’s 1st Mot. at 1. Plaintiff appears to be referring to
the document that EOUSA referred to CRM after the inception of this action. The fact that
EOUSA referred a document to CRM that it determined “may or may not be responsive” to
25
plaintiff’s request does not make CRM’s search inadequate. See Ex. 9 to Cunningham Decl.
First, it was EOUSA that uncovered the document in its files, not CRM. But even if CRM had
uncovered additional documents after its initial search, “the mere fact that additional documents
have been discovered does not impugn the accuracy of the [agency] affidavits. The issue [is] not
whether any further documents might conceivably exist but whether [the agency]’s search for
responsive documents was adequate.” Goland v. CIA, 607 F.2d 339, 369 (D.C. Cir.1978).
The Court therefore finds, on the basis of the Cunningham declaration, that CRM’s
search was “reasonably calculated to uncover all relevant documents.” Weisberg v. DOJ, 705
F.2d 1344, 1351 (D.C. Cir. 1983). 9
2. USMS
The Court similarly finds that USMS conducted an adequate search. Defendants have
submitted a declaration by USMS Associate General Counsel and Freedom of
Information/Privacy Act Officer Bordley. Bordley Decl. ¶ 1. The Bordley declaration states that
OGC searched the systems of records routinely searched for documents concerning prisoners for
documents relating to plaintiff. Id. ¶¶ 4–5. OGC used plaintiff’s name as well as other personal
identifying information to identify documents indexed to him. Id. ¶ 4. The other personal
identifiers submitted to OGC included plaintiff’s date of birth, place of birth, social security
number and information concerning his criminal case. Ex. A to Bordley Decl. USMS conducts
searches using the requestor’s name and/or other identifying information, often his prisoner
9 In opposing the motion, plaintiff argues that summary judgment is ill advised prior to the
tendering of a Vaughn index and the Court’s in camera inspection of the documents and records,
particularly three audio cassette tapes plaintiff alleges exist. Pl.'s 1st Resp. ¶ 9. Since plaintiff
asserts the same arguments in a subsequent filing with respect to the defendants generally, see
Pl.’s 2d Resp. at 27–30, the Court will address these arguments altogether at the end of this
Memorandum Opinion.
26
registration number or social security number. Bordley Decl. ¶ 5. In addition, plaintiff identified
the Northern District of Texas as the location to be searched, and OGC confirmed that this was
the location where USMS would reasonably expect to find responsive documents. Bordley Decl.
¶ 4; Ex. A to Bordley Decl. USMS’s search located twenty-eight pages of responsive
documents, and USMS produced those pages to plaintiff with some limited redactions. Bordley
Decl. ¶ 6. In light of these facts, this Court finds, on the basis of Bordley’s affidavit, that the
search was “reasonably calculated to uncover all relevant documents.” Weisberg, 705 F.2d at
1351.
3. EOUSA
Finally, the Court also finds that EOUSA conducted an adequate search. The Luczynski
declaration states that, upon receiving plaintiff’s request, EOUSA requested that the United
States Attorney’s Office for the Northern District of Texas search and forward responsive
documents. Luczynski Decl. ¶ 8. The FOIA contact for the Northern District of Texas searched
for records from the case files of plaintiff’s criminal case, and sent e-mails to the Assistant
United States Attorneys in the Criminal Division to ascertain whether they had any responsive
records. Id. To search for files, the FOIA contact used the “LIONS” system, which is a
computer system used by United States Attorneys’ Offices to access databases which can be used
to retrieve files pertaining to cases and investigations based on a defendant’s name, the internal
administrative number for the case, and the district court case number. Id. The FOIA contact
used plaintiff’s name as the search term. Id. According to the declarant, “[a]ll responsive
documents to Plaintiff’s FOIA request would have been located in the [United States Attorney’s
Office for the Northern District of Texas]. There are no other records systems or locations
within EOUSA or DOJ in which other files pertaining to Plaintiff’s name were maintained.” Id.
27
These affidavits establish that the agencies searched the databases that were likely to turn up
documents responsive to plaintiff’s requests using search terms that correspond to the scope of
the requests. Plaintiff has not presented any evidence of bad faith on the part of the government.
The Court therefore finds, on the basis of defendants’ affidavits, that the searches were
“reasonably calculated to uncover all relevant documents.” Weisberg, 705 F.2d at 1351.
Plaintiff argues that the searches performed by the DOJ subsections and by EOUSA were
inadequate because they failed to turn up three responsive audio tapes that are in the agencies’
possession. Pl.’s 2d Resp. at 11. But, “the mere fact that additional documents have been
discovered does not impugn the accuracy of the [agency] affidavits. The issue [is] not whether
any further documents might conceivably exist but whether [the agency’s] search for responsive
documents was adequate.” Goland v. Cent. Intelligence Agency, 607 F.2d 339, 369 (D.C.
Cir.1978); see also Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (“[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.”); Iturralde v. Comptroller of
the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (“[T]he adequacy of a FOIA search is
generally determined not by the fruits of the search, but by the appropriateness of the methods
used to carry out the search.”); Adionser v. DOJ, 811 F. Supp. 2d 284, 293 (D.D.C. 2011)
(rejecting a plaintiff’s challenge to the adequacy of a search because he challenged it “based on
the results of the search rather than the actual method by which” the search was conducted).
Plaintiff does not identify any problems with the way in which the search was
conducted, but rather challenges the results of the search. As the Court has already explained,
the agencies have met their burden of demonstrating that the methods they used to search for
responsive documents can be reasonably expected to produce the information plaintiff requested.
28
And although plaintiff lodges a series of conclusory allegations that the agencies acted in bad
faith, he does not proffer any evidence of bad faith. The Court therefore finds, on the basis of the
government’s declarations, that the agencies’ searches were “reasonably calculated to uncover all
relevant documents.” Weisberg v. Dep’t. of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983).
C. The agencies have met their burden to show that they released reasonably
segregable portions of responsive records with the exception of four documents
withheld by EOUSA
FOIA expressly requires agencies to extract “[a]ny reasonably segregable portion of a
record” and provide it to the requesting party “after deletion of the portions which are exempt.”
5 U.S.C. § 552(b). “[I]t has long been the rule in this Circuit that non-exempt portions of a
document must be disclosed unless they are inextricably intertwined with exempt portions.”
Wilderness Soc’y v. U.S. Dep’t of Interior, 344 F. Supp. 2d 1, 18 (D.D.C. 2004) (emphasis in
original), quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir.
1977). Agencies and courts must “differentiate among the contents of a document rather than to
treat it as an indivisible record for FOIA purposes.” Abramson, 456 U.S. at 626 (internal
quotation marks omitted). Regardless of whether a party actually challenges an agency’s
determination on the segregability of requested records, a district court must not “simply approve
the withholding of an entire document without entering a finding on segregability, or the lack
thereof.” Schiller v. Nat’l Labor Relations Bd., 964 F.2d 1205, 1210 (D.C. Cir. 1992), abrogated
on other grounds by Milner v. Dep’t of Navy, 131 S. Ct. 1259 (2011) (internal quotation marks
omitted); see also Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (“If the
district court approves withholding without such a finding [of segregability], remand is required
even if the requester did not raise the issue of segregability before the court.”). The district
court’s findings of segregability must be “specific.” Sussman, 494 F.3d at 1116.
29
The government bears the burden of demonstrating that no reasonably segregable
material exists in the withheld documents. Army Times Publ’g Co. v. Dep’t of Air Force, 998
F.2d 1067, 1068 (D.C. Cir. 1993). The agency must “provide[] a detailed justification and not
just conclusory statements to demonstrate that all reasonably segregable information has been
released.” Valfells v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C. 2010) (internal quotation marks
omitted); see also Armstrong v. Exec. Office of the President, 97 F.3d 575, 578 (D.C. Cir. 1996)
(affirming summary judgment where government affidavits explained non-segregability of
documents with “reasonable specificity”). The government may meet its obligation of
“reasonable specificity” with “[t]he combination of the Vaughn index and [agency] affidavits.”
Johnson v. Exec. Office for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002); see also Loving v.
Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008). Whether the Vaughn index is sufficient “turns
on whether the agency has sufficiently explained why there was no reasonable means of
segregating factual material from the claimed privileged material.” Wilderness Soc’y, 344 F.
Supp. 2d at 18. “[A] blanket declaration that all facts are so intertwined” is not sufficient to meet
this burden. Id. at 19.
With the exception that is explained later in this opinion in the context of plaintiff’s
request to EOUSA, the Court finds that defendants have met their burden of showing with
reasonable specificity that they disclosed all segregable material. The grounds for this
conclusion are explained along with the Court’s substantive discussion of the propriety of the
government’s withholdings.
30
D. FOIA Exemptions
1. CRM did not err in withholding the Richter Memorandum pursuant to
Exemption (b)(5)
CRM argues that summary judgment is appropriate because the only document
responsive to plaintiff’s request that has been withheld is the Richter Memorandum, which it
contends was appropriately withheld subject to Exemption (b)(5). 10 Defs.’ 1st Mem. at 9–13.
Plaintiff has generally challenged defendants’ invocation of Exemption (b)(5). See Pl.’s 2d
Resp. at 19–20.
FOIA Exemption (b)(5) allows agencies to withhold records if the requested documents
include “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
determining whether a document was properly withheld under Exemption (b)(5), a court must
ensure that the document satisfies two conditions: (1) “its source must be a Government agency,
and [(2)] it must fall within the ambit of a privilege against discovery under judicial standards
that would govern litigation against the agency that holds it.” Dep’t of Interior v. Klamath Water
Users Protective Ass’n, 532 U.S. 1, 8 (2001). These privileges include the attorney work product
and deliberative process privileges, which are the two privileges that CRM contends protect the
Richter Memorandum. Id.; Defs.’ 1st Mem. at 11–12. Since the Court finds that CRM has
satisfied the work product prong, it will not address the deliberative process prong.
10 CRM also notes that it redacted the name and telephone number of the EOUSA employee
who referred the Richter Memorandum to CRM pursuant to Exemptions (b)(6) and (b)(7)(C).
Cunningham Decl. ¶ 17 n.2. Because plaintiff did not request – and has not disputed the
decision to withhold – this information, the only relevant exemption that the Court will address is
Exemption (b)(5). Moreover, even if the Court were to consider CRM’s reliance on Exemptions
(b)(6) and (b)(7)(C), it would find that the agency’s withholdings were proper for the same
reasons it finds USMS’s and EOUSA’s reliance on Exemption (b)(7)(C) was proper.
31
The work product doctrine protects “‘mental processes of the attorney,’” Klamath, 532
U.S. at 8, quoting United States v. Nobles, 422 U.S. 225, 238 (1975), when such material was
“prepared in anticipation of litigation or for trial . . . .” Judicial Watch, Inc. v. DOJ, 432 F.3d
366, 369 (D.C. Cir. 2005), quoting Fed. R. Civ. P. 26(b)(3) (internal quotation marks omitted). It
extends to material which “can fairly be said to have been prepared or obtained because of the
prospect of litigation.” Equal Emp’t Opportunity Comm’n v. Lutheran Soc. Servs., 186 F.3d 959,
968 (D.C. Cir.1999) (internal quotation marks omitted). The doctrine also includes materials
relating to “foreseeable litigation, even if no specific claim is contemplated.” Schiller, 964 F.2d
at 1208, abrogated on other grounds by Milner, 131 S.Ct. 1259. The “‘testing question’” when
reviewing a withholding under the work-product prong of Exemption (b)(5) is “‘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.’” In re
Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998), quoting Senate of Puerto Rico v. DOJ, 823
F.2d 574, 586 n.42 (D.C. Cir. 1987).
CRM maintains that, as a document created by the executive branch and that never left
the executive branch, the Richter Memorandum meets Exemption (b)(5)’s threshold requirement
that its source must be a government agency. Defs.’ 1st Mem. at 12. Because plaintiff does not
dispute this assertion, and because there is no evidence that the government’s assertion is false,
Klamath’s first prong is not at issue here. See 532 U.S. at 8.
CRM also contends that the document is predecisional and deliberative, and was prepared
in anticipation of litigation, because it relates to “[c]harging under 18 U.S.C. 924(c) where the
underlying crime of violence is the possession of the same weapon.” Cunningham Decl. ¶ 19;
see also Ex. 11 to Cunningham Decl. Although plaintiff does not specifically dispute this
32
assertion in his opposition to defendant’s summary judgment motion relating to the CRM
request, he contends generally that Exemption (b)(5) does not protect factual material. Pl.’s 2d
Resp. at 19–20. But this argument is unavailing with respect to the work product doctrine.11
“The work-product privilege simply does not distinguish between factual and deliberative
material.” Martin v. Office of Special Counsel Merit Sys. Prot. Bd., 819 F.2d 1181, 1187 (D.C.
Cir. 1987); see also Judicial Watch, 432 F.3d at 371, quoting Martin for the proposition that the
work-product doctrine does not “distinguish between factual and deliberative material.”);
Comptel v. FCC, 910 F. Supp. 2d 100, 122 (D.D.C. 2012) (“If a document is fully protected as
work product, then segregability is not required because that privilege does not distinguish
between factual and deliberative materials.”) (internal quotation marks omitted); Tax Analysts v.
IRS, 117 F.3d 607, 620 (D.D.C. 1997) (“The work product doctrine protects such deliberative
materials but it also protects factual materials prepared in anticipation of litigation.”). Here, the
government has provided sufficient evidence that the Richter Memorandum is predecisional
material prepared in anticipation of plaintiff’s criminal trial. Since plaintiff has not presented
evidence that controverts the government’s declaration or presented evidence of bad faith, the
Court finds that the document was properly withheld under the work-product prong of FOIA
Exemption (b)(5). See Defenders of Wildlife, 314 F. Supp. 2d at 8.
“If a document is fully protected as work product, then segregability is not required.”
Judicial Watch, 432 F.3d at 371. Because the Richter Memorandum – the only document
withheld by CRM – was properly withheld in its entirety as attorney work product, the Court
finds that CRM has met its segregability obligations.
11 The Court also notes that a memorandum related to a charging decision may contain
some facts, but is not solely factual.
33
2. USMS
USMS has withheld records under Exemptions (b)(7)(E) and (b)(7)(C). The Court will
uphold its reliance on these exemptions.
a. USMS appropriately redacted a record pursuant to FOIA Exemption
(b)(7)(E)
FOIA Exemption 7(E) protects from disclosure law enforcement records “to the extent
that the production of such . . . 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) (2012). “Exemption 7(E) sets a relatively
low bar for the agency to justify withholding: Rather than requiring a highly specific burden of
showing how the law will be circumvented, exemption 7(E) only requires that the [agency]
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) (alteration in
original) (internal quotation marks omitted).
USMS invoked Exemption (b)(7)(E) to withhold the secure website address of an internal
USMS database. Bordley Decl. ¶ 11. The document was otherwise produced in full. Id. ¶¶ 11–
12. The Bordley declaration asserts that if the address were to be released, it could lead to the
circumvention of the law by allowing individuals to access a database used to process prisoners.
Id. ¶ 11. Plaintiff does not dispute Bordley’s assertion. Accordingly, the Court finds that USMS
has properly justified its withholding under FOIA. See generally Pl.’s 2d Resp.; see also Defs.’
Reply at 11. Moreover, based on the narrow scope of this redaction under on Exemption
(b)(7)(E), and the fact that USMS released the rest of the redacted document to plaintiff, Bordley
34
Decl. ¶ 11, the Court finds that USMS has met its obligation to disclose reasonably segregable
information.
b. USMS appropriately withheld portions of certain documents pursuant
to Exemption (b)(7)(C)
FOIA Exemption (b)(7)(C) exempts documents compiled for law enforcement that
“could reasonably be expected to constitute an unwarranted invasion of personal privacy.”
5 U.S.C. § 552(b)(7)(C). USMS has redacted twelve records pursuant to this provision. Bordley
Decl. ¶ 12.
In order for particular records to qualify for this exemption, the agency must first
demonstrate that the documents were compiled for law enforcement purposes. See Rural Hous.
Alliance v. U.S. Dep’t of Agric., 498 F.2d 73, 80 (D.C. Cir. 1974). The Bordley declaration
states that all of the information at issue was compiled for the law enforcement purposes relating
to USMS’s oversight of prisoners, including plaintiff. Bordley Decl. ¶ 9. Plaintiff acknowledges
that the law enforcement purpose threshold requirement exists, and he does not dispute that it has
been satisfied here. Pl.’s 2d Resp. at 13–14.
This Circuit has consistently held that where a FOIA request for law enforcement records
invokes the privacy interests of any third party mentioned in those records (including
investigators, suspects, witnesses, and informants), the exemption applies unless there is an
overriding public interest in disclosure. See Schrecker v. DOJ, 349 F.3d 657, 661 (D.C. Cir.
2003); Lewis v. DOJ, 609 F. Supp. 2d 80, 84 (D.D.C. 2009). So the first step in any Exemption
(b)(7)(C) analysis is to determine whether any privacy interest exists; then the court balances the
privacy interest against the public interest in disclosure. See, e.g., People for the Ethical
Treatment of Animals v. Nat’l Insts. of Health Dep’t of Health & Human Servs., 853 F. Supp. 2d
146, 154–59 (D.D.C. 2012).
35
According to the Bordley declaration and the Vaughn index he provided, the information
that USMS withheld under Exemption (b)(7)(C) is identifying information – including names,
addresses, and identification and prison registration numbers – of law enforcement officers,
third-party individuals, USMS employees, government employees, and other prisoners. Bordley
Decl. ¶ 12.
“As a general rule, third-party identifying information contained in [law enforcement]
records is ‘categorically exempt’ from disclosure.” Lazaridis v. U.S. Dep’t of State, -- F. Supp.
2d --, Civ. A. No. 10-1280(RMC), 2013 WL 1226607, at *12 (D.D.C. Mar. 27, 2013). “Under
Exemption (b)(7)(C), an agency may “redact the names, addresses, or other identifiers of
individuals mentioned in investigatory files in order to protect the privacy of those persons.”
Nation Magazine, 71 F.3d at 896; see also Dunkelberger v. DOJ, 906 F.2d 779, 781 (D.C. Cir.
1990), quoting Stern v. FBI, 737 F.2d 84, 91–92 (D.C. Cir. 1984) (“Exemption 7(C) takes
particular note of the ‘strong interest’ of individuals, whether they be suspects, witnesses, or
investigators, ‘in not being associated unwarrantedly with alleged criminal activity.’”).
Plaintiff disputes USMS’s assertion that there is some privacy interest in the information
he requests because at least some of the named individuals, he argues, were “the subject of a
great number of television and newspaper news reports.” Pl’s 2d Resp. at 23. While there is
some support for the notion that a private citizen waives her privacy interest in information when
she voluntarily brings that information into the public domain, see Nation Magazine, 71 F.3d at
896, plaintiff merely asserts – without substantiating – the existence of such reports and thus has
not met his burden of showing that has occurred here. To establish that a privacy interest has
been waived, the plaintiff bears the burden of showing that the information: “(1) is ‘as specific as
the information previously released’; (2) ‘match[es] the information previously disclosed’; and
36
(3) was ‘made public through an official and documented disclosure.’” McRae v. DOJ, 869 F.
Supp. 2d 151, 165 (D.D.C. 2012) (alteration in original), quoting Fitzgibbon v. CIA, 911 F.2d
755, 765 (D.C. Cir. 1990). Plaintiff has not met that burden. Plaintiff has presented no evidence
that any individual publicly disclosed his or her role in his criminal prosecution, much less that
the information publicly disclosed is the same as the information being withheld. See Span v.
DOJ, 696 F. Supp. 2d 113, 122 (D.D.C. 2010), quoting Cottone v. Reno, 193 F.3d 550, 554
(D.C. Cir. 1999) (“Because Span has not identified any specific information or . . . ‘the exact
portions’ of a specific document that is in fact ‘preserved in a permanent public domain,’ his
public domain challenge fails.”) (emphasis in original). Accordingly, the Court finds a
substantial privacy interest in the withheld identifying information.
Where – as here – a legitimate privacy interest exists, the requester must next “(1) show
that the public interest sought to be advanced is a significant one, an interest more specific than
having the information for its own sake, and (2) show the information is likely to advance that
interest.” Boyd v. Criminal Div. of the U.S. DOJ, 475 F.3d 381, 387 (D.C. Cir. 2007), quoting
Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004) (internal quotation marks
omitted). The Supreme Court has determined that the only relevant public interest for purposes
of Exemption (b)(7)(C) is “the citizens’ right to be informed about what their government is up
to.” DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989) (internal
quotation marks and citations omitted). In determining whether to disclose a document, a court
must weigh “the nature of the requested document and its relationship to ‘the basic purpose of
the Freedom of Information Act to open agency action to the light of public scrutiny.’” Id. at
772, quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 372 (1976). “That purpose, however, is
not fostered by disclosure of information about private citizens that is accumulated in various
37
governmental files but that reveals little or nothing about an agency’s own conduct.” Id. at 773
(internal quotation marks and citations omitted). Moreover, courts in this Circuit have
consistently held that where an individual seeks law enforcement records that implicate the
privacy interests of a third party, the requester bears the burden of asserting the public interest at
play. See, e.g., Boyd, 475 F.3d at 387; Lewis, 609 F. Supp. 2d at 84; Fischer v. DOJ, 596 F.
Supp. 2d 34, 47 (D.D.C. 2009). Law enforcement records may be withheld under Exemption
(b)(7)(C) “if the privacy interest at stake outweighs the public’s interest in disclosure.” Nation
Magazine, 71 F.3d at 893 (citations omitted).
Defendants argue that plaintiff presents no legitimate public interest favoring disclosure
of the personal identifying information withheld under Exemption (b)(7)(C). Defs.’ 2d Mem. at
14–15. Rather, according to defendants, disclosure would allow the individuals whose names
and other personal information were redacted, to be subjected to unwarranted attention,
harassment, and other threats. Id. at 15. The Court agrees.
For his part, plaintiff maintains that defendants’ balancing test is a “perfunctory sham”
used to withhold documents. Pl.’s 2d Resp. at 14. He also alleges that the documents will reveal
exculpatory and/or mitigating statements that will reveal his innocence in regards to the criminal
offense for which he was convicted, as well as his role in securing the criminal conviction of
another individual for murder. See id. at 15, 22. But he fails to explain how identifying
information of third parties – the only withheld information – could be exculpatory and/or
mitigating. Moreover, the interest in revealing exculpatory information about one individual’s
criminal case is not the type of public interest protected by FOIA because it would “reveal[] little
or nothing about an agency’s own conduct.” Reporters Comm., 489 U.S. at 773. “That the
[agency]’s denial of his FOIA requests may hinder his efforts to challenge his conviction or
38
sentence . . . is irrelevant.” Pugh v. FBI, 793 F. Supp. 2d 226, 233 (D.D.C. 2011), citing Oguaju
v. United States, 378 F.3d 1115, 1116–17 (D.C. Cir. 2004).
Plaintiff also maintains that “the naming of law enforcement Agents who conducted the
specific wit[n]ess interviews of” the murderer in whose conviction plaintiff claims to have
played a role and of the agents “who took into th[ei]r possession the audio-taps and investigative
case[] notes and the explosive investigation reports” are matters of significant public interest
because they would “cast the light of day on how citizenry’s Government operates.” Pl.’s 2d
Resp. at 27. 12 This description however fails to state how the disclosure of such identifying
information would shed any light on the way that the government operates. Because plaintiff has
not identified any public interest that would overcome the privacy interest protected by
Exemption (b)(7)(C), the Court finds that USMS’s withholdings were proper. The Court also
notes that the limited scope of the redactions made by USMS under Exemption (b)(7)(C) –
which includes only the names, addresses, and other identifying information of third parties,
Bordley Decl. ¶ 12 – satisfies the Court that USMS has met its burden to release all reasonably
segregable material.
3. ATF
Since the Court has already found that plaintiff constructively exhausted his
administrative remedies with respect to the documents referred to ATF from EOUSA, it will
12 Plaintiff also requests documents because he claims that they are relevant to his criminal
case. See, e.g., Pl.’s 2d Resp. at 22. However, a requester’s interest in his own case is
insufficient to establish a relevant public interest. “[T]he only public interest relevant for
purposes of Exemption 7(C) is one that focuses on ‘the citizens’ right to be informed about what
their government is up to.’” Davis v. DOJ, 968 F.2d 1276, 1282 (D.C. Circ. 1992) (internal
quotations marks and citations omitted)
39
proceed to address whether ATF’s withholdings of portions of those records under Exemption
(b)(7)(C) were justified. It finds that they were.
The information that ATF has withheld under Exemption (b)(7)(C) is the names and
identifying information of federal law enforcement agents, federal law enforcement employees,
and third-party individuals. 1st Boucher Decl. ¶ 7. As the Court already explained in detail in its
discussion of USMS’s reliance on Exemption (b)(7)(C), an agency may “redact the names,
addresses, or other identifiers of individuals mentioned in investigatory files in order to protect
the privacy of those persons.” Nation Magazine, 71 F.3d at 896. Thus, ATF identified an
adequate privacy interest in the information it has withheld.
Plaintiff advances the same alleged public interests in disclosing the information ATF has
withheld under Exemption (b)(7)(C) that he advanced with respect to the information USMS has
withheld. Pl.’s 2d Resp. at 14–15. The Court finds them unavailing for the reasons already
discussed. Accordingly, the Court finds that defendants properly relied upon Exemption
(b)(7)(C) to withhold the disputed information. Boyd, 475 F.3d at 387. In addition, the limited
scope of the redactions made by ATF under Exemption (b)(7)(C) – which includes only the
names and other identifying information of third parties, 1st Boucher Decl. ¶ 7 – satisfies the
Court that ATF has met its burden to release all reasonably segregable material.
40
4. EOUSA
In withholding documents and information responsive to plaintiff’s FOIA request,
EOUSA relies on Exemptions (b)(3), (b)(5), (b)(6), and (b)(7)(C). Luczynski Decl. ¶ 6. Plaintiff
challenges each of these exemptions except Exemption (b)(3). Pl.’s 2d Resp. at 13–15, 17–21.
The Court will address each of these exemptions in turn.
a. EOUSA properly withheld records pursuant to FOIA Exemption (b)(3)
EOUSA relies on Exemption (b)(3) to withhold conflict of interest forms. Luczynski
Decl. ¶¶ 13–14. 13 FOIA Exemption (b)(3) authorizes the government to withhold information
that is:
[S]pecifically exempted from disclosure by statute . . . if that statute
(A)(i) requires that the matters be withheld from the public in such a manner as to
leave no discretion on the issue; or
(ii) establishes particular criteria for withholding or refers to particular types of
matters to be withheld; and
(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009
[enacted Oct. 28, 2009], specifically cited to this paragraph.
5 U.S.C. § 552(b)(3). Defendants point to 5 U.S.C. app § 107(a)(2) as the statute that bars the
disclosure of conflict of interest forms under Exemption (b)(3). Luczynski Decl. ¶¶ 13–14.
Plaintiff does not challenge EOUSA’s reliance on Exemption (b)(3) to withhold this form, so this
13 Although the EOUSA does not explain in any detail who the conflict of interest forms
pertain to or what they contain, the Court can infer by EOUSA’s reference to 5 U.S.C. App.
§ 107(a) that these forms are certifications that Assistant United States Attorneys file for each
case to which he or she is assigned. See Concepcion v. FBI, 606 F. Supp. 2d 14, 33–34 (D.D.C.
2009) (characterizing conflict of interest certifications withheld under Exemption (b)(3) as forms
that each Assistant United States Attorney must complete for each case to which he is assigned),
citing Glascoe v. DOJ, Civ. A. No. 04-0486(RJL), 2005 WL 1139269, at *2 (D.D.C. May 15,
2005); see also Glascoe, 2005 WL 1139269, at *1 n.2 (characterizing conflict of interest
certifications withheld under Exemption (b)(3) as “an approved alternative to the Office of
Government Ethics standard form 450”).
41
Court may properly treat the issue as conceded. McMillan v. WMATA, 898 F. Supp. 2d 64, 69
(D.D.C. 2012), citing Howard v. Locke, 729 F. Supp. 2d 85, 87 (D.D.C. 2010). 14
b. EOUSA properly withheld records pursuant to FOIA Exemption (b)(5)
The next exemption EOUSA relies upon is Exemption (b)(5). Luczynski Decl. ¶¶ 16–17.
As explained above with regards to the records that CRM has withheld under this exemption,
Exemption (b)(5) allows agencies to withhold from production inter- or intra-agency documents
that would not be available in litigation. 5 U.S.C. § 552(b)(5). As with CRM’s invocation of
this exemption, there is no dispute that the EOUSA is a government agency; therefore, the
relevant question is whether the documents withheld “fall within the ambit of a privilege against
discovery under judicial standards that would govern litigation against the agency that holds it.”
Klamath, 532 U.S. at 8. Like CRM, EOUSA identifies two such privileges: (1) the attorney
work product doctrine and (2) the deliberative process privilege. Luczynski Decl. ¶ 17. Because
the Court finds that the attorney work product doctrine covers EOUSA’s withholdings, the Court
need not address the deliberative process privilege.
As explained above, the attorney work product doctrine permits the withholding of
material that is “prepared in anticipation of litigation or for trial. . . .” Judicial Watch, 432 F.3d
at 369, quoting Fed. R. Civ. P. 26 (b)(3). EOUSA withheld the following categories of
documents pursuant to Exemption (b)(5)’s attorney work product privilege prong:
A “[p]rintout of an e-mail exchange between attorneys for the government
discussing various issues and how they relate to prosecution of plaintiff,” (Document
No. 1);
14 The Court notes that case law in this Circuit supports defendants’ argument that
EOUSA’s conflict of interest forms are exempt from FOIA disclosure requirements under
Exemption (b)(3). See Concepcion, 606 F. Supp. 2d at 33–34 (finding EOUSA conflict of
interest forms appropriately withheld under Exemption (b)(3)); Lopez v. Exec. Office for U.S.
Attorneys, 598 F. Supp. 2d 83, 87 (D.D.C. 2009) (granting summary judgment for defendant who
relied on Exemption (b)(3) to withhold conflict of interest forms).
42
A “printout of e-mails between attorneys discussing legal positions in Plaintiff’s case
as well as other typed notes prepared by attorneys involved in the case,” (Document
No. 2);
“Drafts of court filed briefs and other records in the case of US v. Barouch,”
(Document No. 3);
“Attorney work product documents made up of e-mails containing thoughts,
strategies, and other relevant information used to prosecute the plaintiff,” (Document
No. 6); and
“Various investigatory material including communications, police reports, and e-
mails from experts in the field,” limited to certain “identifying information such as
names, badge numbers, phone numbers, and in some instances occupations,”
(Document No. 10).
Vaughn Index, Attach. to Luczynski Decl. Based on the descriptions of these documents, the
Court is satisfied that each of them can fairly be said to have been prepared or obtained because
of the prospect of a criminal case being brought against plaintiff. See Lutheran Soc. Servs., 186
F.3d at 968.
Plaintiff argues that the documents should be produced because the only material he
seeks is factual in nature. But even “factual material is itself privileged when it appears within
documents that are attorney work product.” Judicial Watch, 432 F.3d at 371.
Plaintiff also suggests – although he does not expressly argue – that the attorney work
product doctrine does not protect documents when a party demonstrates a “substantial need.”
Pl.’s 2d Resp. at 19. But while that limitation may apply in the context of civil litigation
discovery, it does not apply in the context of FOIA. Judicial Watch, Inc. v. U.S. Dept. of
Homeland Sec., 841 F. Supp. 2d 142, 156 n. 8 (D.D.C. 2012), citing Williams & Connolly v.
Secs. & Exch. Comm’n, 662 F.3d 1240, 1243 (D.C. Cir. 2011). Because the government has
adequately demonstrated that these documents fall under the attorney work product privilege, the
Court finds that they were properly withheld under Exemption (b)(5). See Judicial Watch, 432
43
F.3d at 371 (“If a document is fully protected as work product, then segregability is not
required.”).
c. EOUSA properly withheld records pursuant to FOIA Exemption
(b)(7)(C), but did not properly release segregable material
Next, EOUSA withheld certain categories of documents pursuant to Exemption
(b)(7)(C). 15 Luczynski Decl. ¶¶ 23–24. EOUSA has invoked Exemption (b)(7)(C) to withhold
the following documents in full 16:
A “[f]acsimile regarding a Bench Warrant relating to the plaintiff,” (Document No.
4);
A “[l]etter from probation officer addressing issues relating to the Victim Witness,”
(Document No. 7);
A “[d]ocument titled ‘Search Warrant Application and Affidavit,’” (Document No.
8); and
A “[d]raft of a ‘Criminal Complaint,” which “contains sensitive information
provided by witnesses as well as information identifying those witnesses,”
(Document No. 9).
Vaughn Index, Attach. to Luczynski Decl.
In each instance, “Exemption (b)(7)(C) [was] asserted to protect the names and other
identifying information of third parties, witnesses, and law enforcement personnel who provided
15 Every document withheld under Exemption (b)(6) was also withheld under Exemption
(b)(7)(C). See Vaughn Index, Attach. To Luczynski Decl. FOIA Exemption (B)(7)(C) exempts
documents compiled for law enforcement that “could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” 5 USC § 552(b)(7)(C). Because this is a lower
standard than Exemption 6, which requires a “clearly unwarranted” invasion of privacy, id.§ 552(b)(6) (emphasis added), the Court will address only Exemption (b)(7)(C). See Reporters
Comm., 489 U.S. at 756.
16 This list does not include documents withheld under Exemption (b)(7)(C) that the Court
has already permitted to be withheld under some other FOIA exemption.
44
information to the investigation team on the grounds that disclosure could reasonably be
expected to constitute an unwarranted invasion of personal privacy.” Id.The information withheld pursuant to Exemption (b)(7)(C) by EOUSA was of the same
nature as the information withheld under the same exemption by USMS and ATF, compare
Bordley Decl. ¶ 12 with Vaughn Index, Attach. to Luczynski Decl., and plaintiff made the same
arguments to challenge all of them. The Court finds, based on the same legal analysis that it
used to assess the application of Exemption (b)(7)(C) by USMS and ATF, that EOUSA properly
withheld the identifying information. See Boyd , 475 F.3d at 387; Lazaridis, 2013 WL 1226607,
at *12.
However, while EOUSA appropriately withheld information pursuant to
Exemption (b)(7)(C), the justifications provided in the Vaughn index are insufficient to explain
why each of the previously discussed documents were withheld in full. Vaughn Index, Attach to
Luczynski Decl. “[I]t has long been the rule in this Circuit that non-exempt portions of a
document must be disclosed unless they are inextricably intertwined with exempt portions.”
Wilderness Soc’y, 344 F. Supp. 2d at 18 (emphasis in original), quoting Mead Data Cent., 566
F.2d at 260. With respect to each of these documents, the Vaughn index states that “[n]o page
was determined segregable after a review for segregability.” Vaughn Index, Attach. to Luczynski
Decl. However, this statement does not provide enough information for the Court to determine
whether the document contains disclosable portions that are not “inextricably intertwined” with
the identifying information that is properly withheld under Exemption (b)(7)(C). Wilderness
Soc’y, 344 F. Supp. 2d at 18.
Accordingly, on July 25, 2013, the Court ordered defendants to deliver those four
documents to chambers for in camera inspection in order to assist the Court in making a
45
responsible de novo determination. Minute Order (July 25, 2013). The Court has now reviewed
those documents and finds that all four of them contain portions that are not inextricably
intertwined with identifying information about third parties, witnesses, and law enforcement
personnel. On that basis, the Court will order EOUSA to disclose the following portions of those
documents, which the Court has determined are segregable: 17
From EOUSA Document 4: Page two of the record, except the names and fax
numbers that appear in the header on that page.
From EOUSA Document 7: All nine pages of the record, except: (1) the name and
address of the addressee that appears on pages one and six of the record; (2) the name
of the U.S. Probation Officer that appears on pages two and seven of the record; and
(3) the name and title of the individual copied on the correspondence that appears on
pages two and seven of the record.
From EOUSA Document 8: All eleven pages of the record, except: (1) the name of
the Special Agent, which appears throughout the record; (2) the initials that appear
throughout the record to identify a particular individual; (3) paragraph twelve on page
four of the record; (4) the second, third, and fourth sentences of paragraph thirteen on
page five of the record; and (5) paragraph sixteen on page five of the record; (6)
paragraph two on page nine of the record; (7) the second, third, and fourth sentences
of paragraph three on pages nine to ten of the record; (8) paragraph six on page ten of
the record; and (9) the name of the individual, identified as an employee of the Texas
Department of Public Safety Crime Lab, that appears in paragraph twelve on page
eleven of the record.
From EOUSA Document 9: All eight pages of the record, except: (1) the name of
the Special Agent, which appears throughout the record; (2) the initials that appear
throughout the record to identify a particular individual; (3) paragraph one on page
one of the record; (4) the second, third, and fourth sentences of paragraph two on
page two of the record; (5) paragraph five on page two of the record; (6) paragraph
17 The Court notes that although Document Number 9 is described in EOUSA’s Vaughn
Index as a draft of a criminal complaint, defendants have not asserted Exemption (b)(5) as a
basis for the withholding. In addition, although defendants wrote in the “justification” column of
the Vaughn Index for document number 4 that, “[d]isclosure of any portion of the document
would disclose attorney work product and the deliberate process concerning a particular case,
thus the document is not segregable,” they did not assert Exemption (b)(5) as a basis for the
withholding. Even so, the Court would find based on its in camera review of the document, that
it is not covered by either the attorney work product privilege or the deliberative process
privilege.
46
one on pages four to five of the record; (7) the first three sentences of paragraph two
on page five of the record; (8) the three words following the phrase “photographs of
Improvised Explosive Weapon left” that appear in paragraph five on page five of the
record; (9) all names that appear in paragraph five on pages five to six of the record;
(10) paragraphs six through ten that appear on pages six to seven of the record.
5. The Court need not examine any other FOIA exemptions
Plaintiff also identifies a handful of FOIA exemptions which he contends are inadequate
to justify withholding responsive documents from production, but which the agencies never
invoked. 18 Pl.’s 2d Resp. 15–17, 20–21. Because defendants have not relied upon these
exemptions to withhold any material, the Court need not examine plaintiff’s arguments
concerning them.
III. The Privacy Act
The Privacy Act provides:
Each agency that maintains a system of records shall . . . upon request by
any individual to gain access to his record or to any information pertaining
to him which is contained in the system, permit him . . . to review the
record and have a copy made of all or any portion thereof in a form
comprehensible to him . . . .
5 U.S.C. § 552a(d)(1). Thus, for the disclosure provision to apply, the material at issue must be a
“record” that is, in turn, contained in a “system of records.” Fisher v. Nat’l Inst. of Health, 934
F. Supp. 464, 468 (D.D.C. 1996).
When a plaintiff challenges an agency’s withholding of documents under the Privacy
Act, the court determines de novo whether the withholding was proper, and the burden is on the
agency to sustain its action. 5 U.S.C. § 552a(g)(3)(A); Doe v. United States, 821 F.2d 694, 697–
98 (D.C. Cir. 1987) (en banc) (finding that in this context, de novo means “a fresh, independent
determination of ‘the matter’ at stake,” and the court need not give “deference . . . [to] the
agency’s conclusion”); see also Skinner v. DOJ, 584 F.3d 1093, 1096 (D.C. Cir. 2009). “[T]he
18 These exemptions are (b)(4), (b)(7)(D), and (b)(7)(F). Pl.’s 2d Resp. 15–17, 20–21.
47
[Privacy] Act ‘safeguards the public from unwarranted collection, maintenance, use and
dissemination of personal information contained in agency records . . . by allowing an individual
to participate in ensuring that his records are accurate and properly used.” McCready v.
Nicholson, 465 F.3d 1, 7–8 (D.C. Cir. 2006), quoting Bartel v. Fed. Aviation Admin., 725 F.2d
1403, 1407 (D.C. Cir. 1984).
Where a request for documents is made under both FOIA and the Privacy Act, the
responding agency “must demonstrate that the documents fall within some exemption under each
Act.” Martin, 819 F.2d at 1184 (emphasis in original). “If a FOIA exemption covers the
documents, but a Privacy Act exemption does not, the documents 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.” 19 Id.A. The Court does not have jurisdiction to consider plaintiff’s challenges to the
withholdings by CRM, ATF, or BOP under the Privacy Act because plaintiff has not
exhausted his administrative remedies
Plaintiff’s claims challenging CRM’s, ATF’s, and BOP’s withholdings under the Privacy
Act are barred because plaintiff failed to exhaust his administrative remedies with respect to
those withholdings. As with FOIA, once a Privacy Act request has been processed, a plaintiff is
required to exhaust all administrative remedies before bringing an action to compel disclosure of
documents. See Haase v. Sessions, 893 F.2d 370, 373 (D.C. Cir. 1990) (finding a cause of action
under the Privacy Act to be subject to administrative exhaustion requirement). Failure to exhaust
one’s remedies bars the lawsuit. See Mulhern v. Gates, 525 F. Supp. 2d 174, 187 (D.D.C. 2007)
(dismissing Privacy Act suit brought without exhaustion of administrative remedies for lack of
19 It is worth noting that plaintiff has not challenged any of defendants’ withholdings under
the Privacy Act, and so the Court may properly treat those withholdings as conceded. See
McMillan v. WMATA, 898 F. Supp. 2d 64, 69 (D.D.C. 2012), citing Howard v. Locke, 729 F.
Supp. 2d 85, 87 (D.D.C. 2010).
48
subject matter jurisdiction). Indeed, failure to exhaust administrative remedies under the Privacy
Act is a jurisdictional deficiency because exhaustion is required by statute. See 5. U.S.C.
§ 552a(d)(1)–(3); 5 U.S.C. § 552a(g)(1)(B); Mulhern, 525 F. Supp. 2d at 183 (“Premature
Privacy Act suits [for improperly withholding documents] are dismissed for lack of subject
matter jurisdiction.”); Kursar v. Transp. Sec. Admin., 581 F. Supp. 2d 7, 18 (D.D.C. 2008)
(same). “A person seeking judicial review of an agency’s handling of his or her Privacy Act
request must actually exhaust the available administrative remedies.” Makuch v. FBI, No. Civ.A
99-1094 RMU, 2000 WL 915640, at *4 (D.D.C. Jan. 5, 2000).
With respect to CRM, there is no dispute that plaintiff exhausted the available
administrative remedies for challenging its initial determination on his Privacy Act request by
filing a timely appeal with OIP. Cunningham Decl. ¶ 13; see also Ex. 6 to Cunningham Decl.
But there is no indication that plaintiff appealed CRM’s subsequent determination to withhold
the Richter Memorandum – the document referred to CRM by EOUSA after plaintiff filed the
complaint in this action. See Ex. 11 to Cunningham Decl. Even though CRM did not provide a
justification under the Privacy Act in its April 18, 2012 letter informing plaintiff that it was
withholding the Richter memorandum, plaintiff must raise that deficiency in a timely appeal to
OIP before this Court obtains jurisdiction to hear it. 20 And because exhaustion under the Privacy
Act is jurisdictional, the Court cannot find that plaintiff constructively exhausted his
administrative remedies. In addition, there is no evidence that plaintiff exhausted his
administrative remedies with respect to the Richter memorandum when it was being withheld by
EOUSA because, as will be discussed below, plaintiff did not administratively challenge
EOUSA’s failure to timely respond to his request. Accordingly, this Court does not have
20 The letter did inform plaintiff of his right to an administrative appeal and of the process
for filing an appeal.
49
jurisdiction over his challenge to CRM’s withholding of the Richter memorandum under the
Privacy Act. Makuch , 2000 WL 915640, at *4.
With respect to both BOP and ATF, plaintiff is barred from challenging the agencies’
initial determinations on his Privacy Act request because he did not file appeals of either of those
determinations with OIP. Attach. 9 to Mack Decl. (BOP); 1st Boucher Decl. ¶ 8 (ATF).
Both agencies also obtained documents from EOUSA after the initiation of this action.
BOP never contacted plaintiff regarding these documents. See generally Mack Decl. (making no
reference to documents referred to BOP by EOUSA). ATF informed plaintiff that it had
received documents from EOUSA and that it was releasing them to plaintiff with redactions. Ex.
E to 1st Boucher Decl. But, while it justified the redactions under FOIA, it did not justify them
under the Privacy Act. Id. Even though all of these events occurred after plaintiff had already
filed the complaint in this action, he is jurisdictionally barred from challenging them here
because he failed to first file an appeal with OIP. Mulhern, 525 F. Supp. 2d at 183.
B. Plaintiff’s Privacy Act claims with respect to EOUSA are barred
EOUSA appears to be willing to concede that plaintiff had constructively exhausted his
administrative remedies at the time he filed suit. Defs.’ 2d Mem. at 17 n.8. But, “[t]he Privacy
Act contains no equivalent to FOIA's constructive-exhaustion provision.” Makuch, 2000 WL
915640, at *4. Despite defendant’s concession, “[a] claim that the court lacks jurisdiction under
Article III of the Constitution may not be waived, . . . and the court is obligated to address it sua
sponte.” Doe ex rel. Fein v. District of Columbia, 93 F.3d 861, 871 (D.C. Cir. 1996), citing
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). Accordingly, the Court must
find that plaintiff failed to exhaust his administrative remedies with respect to his request to
50
EOUSA, and the Court’s consideration of EOUSA’s justification for its withholdings under the
Privacy Act on the merits is therefore barred for lack of subject matter jurisdiction.
C. Plaintiff has not established that USMS inappropriately declined to produce
documents pursuant to the Privacy Act
Plaintiff did, however, appeal USMS’s withholdings under the Privacy Act, so this
Court’s review of that agency’s action is not jurisdictionally barred. USMS asserts that all of the
records at issue here fall under an exemption to disclosure under the Privacy Act, codified at 5
U.S.C. § 552a(j)(2) (“Exemption j(2)”). Defs.’ 2d Mem. at 13 n.5. Exemption j(2) applies if: (1)
the records are stored in a system of records that has been designated by the agency to be exempt
from the Privacy Act’s disclosure requirements, and (2) the system of records is “maintained by
an agency or component thereof which performs as its principal function any activity pertaining
to the enforcement of criminal laws” and consists of “information compiled for the purpose of a
criminal investigation.” 5 U.S.C. § 552a(j)(2) (2012); see also Defs.’ 2d Mem. at 13 n.5.
Plaintiff has not opposed defendants’ assertion of Exemption (j)(2) over any of the
material at issue in this case, so the Court may properly treat defendants’ assertion as conceded.
See McMillan, 898 F. Supp. 2d at 69, citing Howard, 729 F. Supp. 2d at 87 (“It is well
understood in this Circuit that when a plaintiff files an opposition to a motion . . . addressing
only certain arguments raised by the defendant, a court may treat those arguments that the
plaintiff failed to address as conceded.”). 21
21 In addition, the Court is satisfied that defendants have met their burden to show that
Exemption j(2) applies to any responsive records covered by the Privacy Act. The Bordley
Declaration states that the system of records to which these documents belong assists the USMS
in effectuating its statutory law enforcement responsibilities. Bordley Decl. ¶ 5. In addition, as
the Bordley Declaration notes, federal regulation exempts the relevant systems because 28
C.F.R. §§ 16.101(a) and (q) identify JUSTICE/USM-007 and JUSTICE/USM-005 as being
exempt from Privacy Act disclosure provisions. Id.51
D. Plaintiff’s Privacy Act claims with respect to Treasury are barred
Because, as discussed above, plaintiff has not established that he submitted a request to
Treasury, the Court need not address Treasury’s production obligations under the Privacy Act.
IV. Plaintiff’s Remaining Arguments
Finally, plaintiff sets forth a number of other arguments concerning the adequacy of the
agencies’ searches and productions. None is persuasive.
First plaintiff argues that the government is operating in bad faith and inappropriately
withholding exculpatory evidence for his criminal case. Pl.’s 2d Resp. at 26–27. With respect to
the adequacy of the search, and as the Court has already explained, affidavits attesting to a
reasonable search “are afforded a presumption of good faith,” Defenders of Wildlife, 314 F.
Supp. 2d at 8, and “can be rebutted only ‘with evidence that the agency’s search was not made in
good faith.’” Id., quoting Trans Union LLC, 141 F. Supp. 2d at 69. Plaintiff has come forth with
no evidence of bad faith. Instead, he offers merely conclusory assertions. See Pl.’s 2d Resp. at
26–27. Accordingly, plaintiff’s unsupported argument is unsuccessful.
Next, plaintiff argues that the Vaughn index produced in this case is “simply smoke and
mirrors” and that defendants should be ordered to produce an adequate Vaughn index.22 Id. at
27–28. Production of a Vaughn index is just one way that an agency can explain its response to a
FOIA request – albeit a common one. In order for a court to pass on the agency’s action, the
agency must submit a “Vaughn index and/or accompanying affidavits or declarations”
specifically showing why documents were redacted or withheld in full. Defenders of Wildlife v.
U.S. Border Patrol, 623 F. Supp. 2d 83, 88 (D.D.C. 2009). The Vaughn indices and
accompanying affidavits in this case are sufficient: Both EOUSA and USMS produced Vaughn
22 As discussed, defendants produced two Vaughn indices – one for EOUSA and one for
USMS.
52
indices that set forth with particularity the documents withheld and the underlying rationales as
demonstrated by the Court’s ability to rely on them in assessing the government’s justifications
for its withholdings. See Bordley Decl. ¶ 12; Vaughn Index, Attach. to Luczynski Decl. Neither
BOP nor ATF produced Vaughn indices, but they both produced detailed affidavits. Moreover,
the Court need not rely on detailed descriptions of those agencies’ withholdings because plaintiff
has failed to exhaust his administrative remedies with respect to their determinations. See 1st
Boucher Decl.; Mack Decl.
Finally, there is no need for a Vaughn index for the remaining two agencies: Treasury
and CRM. Treasury need not produce a Vaughn index because it did not receive any request
from plaintiff, and the Court will grant summary judgment on that basis. CRM submitted a
declaration that described with particularity the sole responsive document that its search
uncovered, the material that was withheld from it, and the basis for its withholdings. See
Cunningham Decl.; Gilmore Decl. The agencies, therefore, need not provide additional Vaughn
indices.
Plaintiff argues that this Court should undertake an in camera inspection of the withheld
documents. Pl.’s 2d Resp. at 29. “Congress left the matter of In camera inspection to the
discretion of the district court.” Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). And the
criterion that courts use to determine whether to exercise that discretion is “[w]hether the district
judge believes that In camera inspection is needed in order to make a responsible de novo
determination on the claims of exemption.” Id. At the same time, in camera review is not
required in every case and it “is not a substitute for the government’s obligation to justify its
withholding in publicly available and debatable documents.” PHE, Inc. v. DOJ, 983 F.2d 248,
253 (D.C. Cir. 1993) (internal quotation marks and citations omitted). There is no reason for the
53
Court to conduct an in camera inspection of the documents about which the agencies made
disclosure decisions that plaintiff did not appeal to OIP, because the Court’s review of those
agency determinations is barred. And the Court has already found that the Vaughn indices
submitted by the parties provide sufficient detail for the Court to assess the agencies’ claims of
exemption on the remaining documents, except for the four EOUSA documents that the Court
has reviewed.
Finally, plaintiff argues that this Court’s powers in equity allow it to exercise jurisdiction
for purposes of deciding the matter. Pl.’s 2d Resp. at 30–32. But he provides no authority for
the proposition that a federal court can unilaterally expand its own jurisdiction.
54
CONCLUSION
For the reasons set forth above, this Court will grant defendants’ first partial motion for
summary judgment [Dkt. # 15], and will grant in part and deny in part defendants’ second partial
motion for summary judgment [Dkt. # 22]. The Court will direct defendant EOUSA to produce
portions of four withheld documents, consistent with this Memorandum Opinion. The Court will
also remand to BOP to review the documents that it received from EOUSA after plaintiff had
already initiated this action and to either disclose those documents to plaintiff or justify any
withholdings under FOIA. A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: August 23, 2013
55