Sarras v. DOJ

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DONATOS SARRAS,
Plaintiff,
v. Case No. 19-cv-0861 (CRC)
U.S. DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION AND ORDER
Federal inmate Donatos Sarras filed this pro se action pursuant to the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act (“PA”), 5 U.S.C. § 552a,
challenging the Department of Justice’s (“DOJ’s”) responses to two FOIA requests that he
submitted in 2016 and 2018. In the 2016 request, Sarras asked the DOJ Criminal Division’s
Office of Enforcement Operations (“OEO”) to provide him all documents in his file and all
electronic communications referencing his name. In the 2018 request, Sarras sought the same
categories of information from the Criminal Division’s International Prisoner Transfer Unit
(“IPTU”). After the Court granted the government partial summary judgment, OEO conducted
and produced documents from a supplemental search. OEO then moved for summary judgment,
which the Court now again grants in part. Specifically, the Court finds that OEO’s search in
response to the 2016 request was adequate, that it properly released a record referred to the
Department of State, and that it properly withheld certain information under FOIA Exemptions 5
and 6. But, because the government’s declarations and Vaughn Indexes have failed to justify the
remainder of the government’s withholdings, the Court reserves judgment as to those
withholdings.
I. Background
On May 16, 2016, Sarras lodged the following FOIA request with the FOIA/PA Unit of
OEO:
I am requesting that you provide me from the Office of Enforcement Operations
(OEO) copies or print-outs of all non-duplicative: (1) documents in my file; and
(2) other documents and written electronic communications including email
threads referencing/containing my name sent “from” and “to” (including “carbon
copies”) the OEO.
Def.’s Status Report, Ex. A, ECF No. 33-1 (“May 2016 request”). Twenty-seven months later,
Sarras submitted a second request for the same categories of records from IPTU, which at the
time was a component of OEO. 1 Id., Ex. C, ECF No. 33-1 (“August 2018 request”). These are
the only requests at issue in this case, but Sarras has five other FOIA requests pending with
OEO. See Pl.’s Cross Mot. Summ. J. at 24, ECF No. 78.
OEO handled the May 2016 and August 2018 requests in identical fashion. In both
instances, it determined that IPTU was “most likely to maintain records responsive to [Sarras’s]
request” and reviewed records contained in Sarras’s IPTU case file. First Decl. of Amanda M.
Jones (“First Jones Decl.”) ¶¶ 13–16, ECF No. 33-1. Because IPTU had a policy of placing “all
documents,” including “all email communications,” regarding a prisoner’s transfer request
“inside the prisoner’s case file,” OEO determined that electronic records searches were
unnecessary. Id. ¶ 14. After completing the search, the FOIA/PA Unit reviewed responsive
records line-by-line and made withholding and segregability determinations pursuant to FOIA
Exemptions 5, 6, 7(C), and 7(F). Id. ¶¶ 17–44. Additionally, OEO referred 119 pages of records
1
Since the submission of Sarras’s FOIA requests, IPTU has moved from OEO to the
Criminal Division’s Office of International Affairs. See 28 C.F.R. § 0.64-2; DOJ Manual § 9-
35.020 (2018). Because IPTU was within OEO during the events underlying this case, the Court
will refer to IPTU as a component of OEO for ease of reading.
2
to the federal Bureau of Prisons (“BOP”), Decl. of Kristi Scarantino ¶ 5, ECF No. 28-3, and one
record to the Department of State, Second Decl. of Amanda M. Jones ¶ 7, ECF No. 39-1.
In March 2019, Sarras filed suit against DOJ alleging that it had violated FOIA by failing
to provide records responsive to his requests. See Compl. ¶¶ 1, 4, ECF No. 1. In September
2020, following several months of processing and production, the government moved for
summary judgment. See Mot. for Summ. J., ECF No. 28. In August 2021, the Court granted
OEO’s motion in part and denied it in part. See Op. and Order (“Op.”), ECF No. 44.
Specifically, the Court granted summary judgment to OEO on the adequacy of its search in
response to Sarras’s August 2018 request. Id. at 10–12. The Court reserved judgment, however,
on the adequacy of the search conducted in response to Sarras’s May 2016 request because the
government’s declarations failed to aver that “all files likely to contain responsive materials were
searched.” Id. at 8 (cleaned up). The Court also reserved judgment as to whether OEO had
properly withheld a Department of State record and documents related to the processing of
Sarras’s FOIA requests. Id. at 12–20.
Because the FOIA/PA Unit searched only IPTU’s records in response to Sarras’s May
2016 request, the unit determined that supplemental searches should be conducted following the
Court’s order. First Decl. of Traci McCoy (“First McCoy Decl.”) ¶ 15, ECF No. 72-1. The
FOIA/PA Unit sent search requests to the other three units of OEO—the Electronic Surveillance
Unit (“ESU”), Policy Statutory Enforcement Unit (“PSEU”), and Special Operations Unit
(“SOU”)—and conducted a search of its own records as well. Id. ¶¶ 15–16, 26.
The ESU and PSEU searches proceeded similarly and uncovered no records. The FOIA
point-of-contact in each unit entered the search term “Donatos Sarras” and “Sarras” into the
unit’s computer tracking database with no date limitations. Id. ¶¶ 18–19; Second Decl. of Traci
3
McCoy (“Second McCoy Decl.”) ¶ 12, ECF No. 83-1. The units’ databases track authorization
requests that require the approval of senior personnel in the Criminal Division’s Office of the
Assistant Attorney General. First McCoy Decl. ¶¶ 18–19. Because the database searches did not
yield results, ESU and PSEU did not conduct additional searches. Id.; Second McCoy Decl. ¶¶
13–14.
The SOU and FOIA/PA Unit’s searches did bear fruit. Starting with the SOU search, that
unit’s FOIA point-of-contact entered the terms “Donatos Sarras” and “Sarras” into SOU’s
computer database, with no date limitations, and identified one case file. First McCoy Decl. ¶
20. Because the search yielded responsive records and the records’ content indicated other
electronic records existed, SOU searched its electronic network drives, using the term “Sarras”
with no date limitations. Id. ¶ 21. That search identified an additional four documents, whose
content suggested that a potentially responsive email thread existed. Id. ¶¶ 21–22. The
FOIA/PA Unit coordinated with the Criminal Division’s Information Technology Management
(“ITM”) Unit to search the email account of the SOU staff member assigned to Sarras’s
investigation. Id. ¶ 22. ITM conducted two searches. Id. ¶¶ 23–24. The first one, which used
the search terms “Donatos” and “Sarras,” produced no results. Id. ¶ 23. The second search,
which used the names of an informant and FBI agent involved in Sarras’s case as search terms,
produced 136 emails. Id. ¶¶ 24–25. The FOIA/PA Unit reviewed the emails and determined that
they were not responsive because they did not reference Sarras. Id. ¶ 25.
The FOIA/PA Unit’s search located potentially responsive documents in both the unit’s
computer tracking database and in staff members’ email accounts. Id. ¶¶ 26–27, 29. Of the
records in the computer database, the FOIA/PA Unit determined that four case files contained
potentially responsive pages. Id. ¶¶ 26–27. Because the case files included copies of emails, the
4
FOIA/PA Unit coordinated with ITM to search eight custodians’ email accounts yielding 5,750
potentially responsive pages. Id. ¶ 29–30. Even though the FOIA/PA Unit has maintained only
electronic case files since approximately February 2014, the unit also searched its archived
computer database and found no results. Id. ¶ 28.
After completing these searches, OEO reviewed every page line-by-line and segregated
and disclosed all non-exempt information. Id. ¶ 67. OEO also referred ten pages to the FBI for
review. Decl. of Michael G. Seidel (“Seidel Decl.”) ¶ 4, ECF No. 72-2. As a result of these
searches, OEO released documents to Sarras in four batches between December 2021 and
December 2022. First McCoy Decl. ¶¶ 33–36. The government moved for summary judgment
in January 2023, and Sarras cross-moved for summary judgment in March. Def.’s Mot. Summ.
J., ECF No. 73-1; Pl.’s Cross Mot. Summ. J.
II. Legal Standard
“Summary judgment is the typical and appropriate vehicle to resolve FOIA disputes.”
Citizens for Resp. & Ethics in Wash. v. Dep’t of Homeland Sec., 525 F. Supp. 3d, 181, 188
(D.D.C. 2021) (Cooper, J.) (“CREW”). When reviewing a motion for summary judgment under
FOIA, “the underlying facts and the inferences to be drawn from them are construed in the light
most favorable to the FOIA requester,” and summary judgment is appropriate only after “the
agency proves that it has fully discharged its FOIA obligations.” White Coat Waste Project v.
Dep’t of Veterans Affs., 404 F. Supp. 3d 87, 95 (D.D.C. 2019) (cleaned up). “[T]he burden of
proof is always on the agency to demonstrate that it has fully discharged its obligations under the
FOIA.” McKinley v. FDIC, 756 F. Supp. 2d 105, 111 (D.D.C. 2010).
5
III. Analysis
Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)
(cleaned up). The statute thus requires an agency to perform an adequate search—i.e., a search
that is “reasonably calculated to uncover all relevant documents.” Weisberg v. DOJ, 705 F.2d
1344, 1350-51 (D.C. Cir 1983). At the same time, “Congress sought to balance the public’s
interest in governmental transparency against legitimate governmental and private interests that
could be harmed by release of certain types of information.” United Techs. Corp. v. DOD, 601
F.3d 557, 559 (D.C. Cir. 2010) (cleaned up). To that end, Congress enumerated nine statutory
exemptions. Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002). FOIA’s
“strong presumption in favor of disclosure” requires the statutory exemptions “to be narrowly
construed.” Id. (cleaned up).
Sarras once again challenges the adequacy of OEO’s search in response to his 2016
request and the legitimacy of the government’s (both OEO’s and the FBI’s) withholdings. 2 As to
adequacy, summary judgment is appropriate where the agency demonstrates “beyond material
2
Sarras has also renewed his request for declaratory relief and added a request for
injunctive relief regarding the government’s delayed responses to his FOIA requests. See Pl.’s
Cross Mot. Summ. J. at 33. The Court rejects these requests. As the Court noted previously,
“the weight of legal authority in this circuit indicates that declaratory judgment in the FOIA
context is reserved for cases involving policy or practice violations where agencies engage in
patterns or have policies of denying FOIA requests.” Op. at 5 n.4 (quoting Sabra v. Customs &
Border Prot., No. 20-cv-681 (CKK), 2021 WL 796166, at *4 (D.D.C. Mar. 2, 2021)) (cleaned
up). In a nod to this standard, Sarras alleges in his cross-motion for summary judgment that
OEO has a “practice or policy” of violating FOIA’s statutory deadlines. Pl.’s Cross Motion
Summ. J. at 33. But a “plaintiff—even a pro se plaintiff—may not amend the complaint by
raising an issue for the first time in a brief in opposition to a motion for summary judgment.”
SAI v. Transp. Sec. Admin., 315 F. Supp. 3d 218, 234 (D.D.C. 2018). Sarras also seeks
injunctive relief because of his five still-pending FOIA requests. See Pl.’s Cross Motion Summ.
J. at 33. The Court will not permit Sarras to shoehorn these requests, which were not mentioned
in his complaint, into the case at this stage of litigation.
6
doubt,” Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (cleaned up), “that it made a
good faith effort to conduct a search for the requested records, using methods which can be
reasonably expected to produce the information requested,” Oglesby v. Dep’t of Army, 920 F.2d
57, 68 (D.C. Cir. 1990). As to FOIA’s exemptions, summary judgment is appropriate where the
agency demonstrates that the claimed exemptions “apply to each record for which they are
invoked.” CREW, 525 F. Supp. 3d at 187. The agency can make this showing “through the
submission of an index of documents, known as a Vaughn Index, sufficiently detailed affidavits
or declarations, or both.” Agrama v. IRS, 282 F. Supp. 3d 264, 274 (D.D.C. 2017) (cleaned up).
When evaluating whether an agency is entitled to summary judgment, the agency’s declarations
are entitled a presumption of good faith. See, e.g., CREW, 525 F. Supp. 3d at 188. The Court
will first address the adequacy of the search OEO conducted in response to Sarras’s 2016 request
before turning to the government’s productions and withholdings.
A. Adequacy of the Search
On summary judgment, an agency can carry its burden as to adequacy by submitting a
reasonably detailed affidavit (1) “setting forth the search terms and the type of search performed”
and (2) “averring that all files likely to contain responsive materials . . . were searched.”
Iturralde v. Comptroller of Currency, 315 F.3d 311, 313–14 (D.C. Cir. 2003). In turn, the FOIA
plaintiff can rebut the agency’s affidavit by “provid[ing] countervailing evidence as to the
adequacy of the agency’s search.” Id. at 314 (cleaned up). While “purely speculative claims
about the existence and discoverability of other documents” are insufficient to rebut a reasonably
detailed affidavit on summary judgment, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991) (cleaned up), summary judgment is inappropriate where “a review of the record
raises substantial doubt, particularly in view of well-defined requests and positive indications of
7
overlooked materials,” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir.
1999) (cleaned up).
1. Search in Response to Sarras’s May 2016 FOIA Request
OEO’s supplemental search, which it undertook in response to Sarras’s 2016 FOIA
request, was adequate. As for the first adequacy requirement—that the agency “set[] forth the
search terms and the type of search performed,” Iturralde, 315 F.3d at 313–14—the government
submitted two declarations prepared by Traci McCoy, the Trial Attorney in OEO’s FOIA/PA
Unit who “coordinated all supplemental searches for Plaintiff’s OEO Request,” and a declaration
from Michael Seidel, the chief of the FBI section tasked with responding to FOIA requests. 3
Second McCoy Decl. ¶ 8; Seidel Decl. ¶¶ 1–2. The two McCoy declarations set forth the
searches each OEO unit performed, including the databases reviewed and the search terms and
dates used, and explain each unit’s decisions about which databases and custodial records to
search. First McCoy Decl. ¶¶ 16–30; Second McCoy Decl. ¶¶ 11–15.
ESU and PSEU both began by searching their tracking databases. First McCoy Decl. ¶¶
18–19. The units’ responsibilities are to review “all federal electronic surveillance requests”
(ESU) and to review “requests . . . to use, or consult[] about, numerous investigative tools or
prosecutorial actions” (PSEU). Second McCoy Decl. ¶¶ 13–14. If either ESU or PSEU had
received an authorization request referencing Sarras, the request “would have appeared in [the
unit’s] tracking database.” Id. Because those databases yielded no results, neither unit
undertook additional searches. Id.3
Sarras has challenged “the accuracy and detail of Ms. McCoy’s declarations” and
suggests that her declaration “be evaluated as such of someone engaged in the processing of
FOIA requests.” Pl.’s Reply at 3, ECF No. 86. “[T]he Court has no reason to doubt defendant’s
declarations.” Blank Rome LLP v. Dep’t of the Air Force, No. 15-cv-1200 (RCL), 2016 WL
5108016, at *9 (D.D.C. Sept. 20, 2016).
8
By contrast, because initial searches in the SOU and FOIA/PA databases identified
potentially responsive records, those units searched additional locations. First McCoy Decl. ¶¶
20–30. SOU searched its electronic network drives and the email account of the sole SOU
member assigned to Sarras’s investigation. Id. ¶¶ 22–25. The FOIA/PA Unit also searched its
electronic network drive, archived computer database, and the email accounts of eight FOIA/PA
Unit staff members who had been “assigned to Plaintiff’s requests, performed FOIA/PA
administrative tasks related to Plaintiff’s request, or were mentioned in Plaintiff’s request files.”
Id. ¶¶ 26–29. These searches easily satisfy the requirement that the agency conduct “a search
reasonably calculated to uncover all relevant documents.” Weisberg, 705 F.2d at 1351.
The two McCoy Declarations also meet the second adequacy requirement that the agency
attest that “all files likely to contain responsive materials . . . were searched.” Iturralde, 315 F.3d
at 314. In her first declaration, Ms. McCoy “aver[red] that the FOIA/PA Unit’s supplemental
search was reasonably calculated to uncover all potentially responsive records and that all files
identified as likely to contain responsive documents were searched.” First McCoy Decl. ¶ 32. In
her second declaration, she added that “the Criminal Division determined that all locations likely
to contain potentially responsive records were searched within ESU,” “within PSEU,” and
“within SOU.” Second McCoy Decl. ¶¶ 13–15.
The burden thus shifts to Sarras to rebut the agency’s affidavit by “provid[ing]
countervailing evidence as to the adequacy of the agency’s search.” Iturralde, 315 F.3d at 314(cleaned up). Sarras challenges the supplemental search on several grounds. His specific
challenges vary from OEO unit to unit, but, in broad strokes, he contests OEO’s failure: (1) to
provide screenshots showing “no results” (where searches yielded no results); (2) to use the date
of the search as the cut-off date for searches; (3) to provide details about which exact databases
9
or custodial records were searched and why; and (4) to search in additional databases and
custodial email accounts. 4 Pl.’s Cross Mot. Summ. J. at 7–12.
None of these challenges raises “substantial doubt” about the adequacy of OEO’s search.
Valencia–Lucena, 180 F.3d at 326. First, OEO is not required to provide screenshots or other
proof that searches yielded no results. Absent “countervailing evidence or apparent
inconsistency of proof,” which Sarras has not produced, “affidavits that explain in reasonable
detail the scope and method of the search conducted by the agency will suffice to demonstrate
compliance with the obligations imposed by the FOIA.” Perry v. Block, 684 F.2d 121, 127
(D.C. Cir. 1982). Second, even though OEO used the date of its original search as the cut-off
date for the supplemental searches, rather than the dates of the supplemental searches, this does
not foreclose the adequacy of OEO’s search. 5 D.C. Circuit courts have “routinely” found that an
original “date-of-search cut-off” is “reasonable,” even for searches performed after that date.
McClanahan v. DOJ, 204 F. Supp. 3d 30, 47 (D.D.C. 2016), aff’d, 712 F. App’x 6 (D.C. Cir.
2018); see also id. (collecting cases). Third, D.C. Circuit courts have rejected the contention that
agency affidavits must provide detailed “information regarding the actual databases or indices
searched.” Citizens for Resp. & Ethics in Washington v. Nat’l Indian Gaming Comm’n, 467 F.
Supp. 2d 40, 50 (D.D.C. 2006). “FOIA does not demand this degree of detail.” Id. And, finally,
4
In his cross-motion for summary judgment, Sarras also asserts that the ESU and PSEU
searches were inadequate because neither unit ran searches for “Sarras,” as opposed to “Donatos
Sarras.” Pl.’s Cross Mot. Summ. J. at 7–8. Following Sarras’s motion, ESU and PSEU
conducted additional searches with just the term “Sarras.” Second McCoy Decl. ¶ 12. Those
searches produced no results. Id. ¶¶ 13–14.
5
OEO ran its initial search for the 2016 request on July 7, 2016. First McCoy Decl. ¶ 22
n.6. When OEO sent the search criteria to ITM for some of the supplemental searches, OEO
mistakenly listed July 7, 2017, instead of 2016, as the date. Id. As a result, some searches used
July 7, 2017 as the cut-off date, but no search used a cut-off date prior to July 7, 2016.
10
as this Court clarified in its 2021 opinion, “[t]here is no requirement that the agency search every
record system.” Oglesby, 920 F.2d at 68.
2. Narrowing of the May 2016 Request
Sarras also challenges the supplemental search on the grounds that OEO improperly
narrowed the scope of his request by reviewing only administrative reports. Pl.’s Cross Motion
Summ. J. at 13. That was not the case. The source of Sarras’s understandable confusion is a
paragraph in the First McCoy Declaration noting that “Plaintiff agreed to narrow the scope of the
FOIA records located to FOIA/PA Unit administrative reports.” First McCoy Decl. ¶ 31.
However, as the Second McCoy Declaration clarifies, “[t]he FOIA/PA Unit Administrative
Reports are only one category of documents located as a result of the Criminal Division’s
supplemental searches.” Second McCoy Decl. ¶ 17 (emphasis added); see also First McCoy
Decl., Ex. E (hereinafter, “Supplemental Vaughn Index”). OEO still reviewed other categories
of documents. See Second McCoy Decl. ¶ 17 (“The FOIA/PA Unit reviewed all 5,750 pages it
located in response to its FOIA/PA Unit search, which included FOIA/PA Unit Administrative
Reports.”); Supplemental Vaughn Index (listing, among the reviewed documents, emails,
memoranda, letters, and processing notes). Additionally, even though OEO and Sarras agreed
that OEO would “process two examples of each type of administrative report,” OEO ultimately
decided to “process[] and produce . . . all responsive, non-exempt portions of FOIA/PA Unit
Administrative Reports.” Second McCoy Decl. ¶ 17; see also Pl.’s Resp. to Def.’s Mot. to
Enlarge Time at 2–3, ECF No. 47 (explaining Sarras’s understanding of the original agreement).
3. IPTU Records
Separate from his challenge to the supplemental search, Sarras moves for summary
judgment on the grounds that OEO failed to adequately search IPTU files as requested in
11
Sarras’s May 2016 request. See Pl.’s Cross Mot. Summ. J. at 14–16. He asserts that this Court’s
August 2021 opinion did not put to bed the adequacy of the search of the IPTU records in
response to Sarras’s May 2016 request, but rather addressed just the August 2018 request. Id. at
14.
The Court now makes explicit what was implicit in its prior opinion: OEO adequately
searched IPTU’s files in response to the May 2016 request. As the Court noted previously, OEO
adequately “described the search terms used and search performed.” 6 Op. at 8. And OEO
submitted an affidavit confirming that all IPTU files “likely to contain responsive materials . . .
were searched.” Iturralde, 315 F.3d at 314. Specifically, OEO’s affiant Amanda Jones averred
that it is “the policy of IPTU to place all documents,” including “all email communications”
involving a prisoner’s transfer request, “inside the prisoner’s case file.” First Jones Decl. ¶ 14.
Given this policy, it was perfectly reasonable for IPTU to conclude that a search of Sarras’s case
file would contain all the IPTU records responsive to the May 2016 request.
Sarras raises two additional challenges to OEO’s search of IPTU files in response to his
May 2016 request. First, he contends the search was inadequate because OEO located IPTU
records as part of its supplemental search. See Pl.’s Cross Motion Summ. J. at 15 (explaining
that IPTU records were found in OEO’s February 2022 interim response). However, as the
Second McCoy Declaration explains, the IPTU records identified during the supplemental search
were “duplicates of pages” that OEO had included in its November 2019 response. Second
McCoy Decl. ¶ 18; see also Supplemental Vaughn Index at 4 (indicating that the non-duplicate
6
Specifically, in response to Sarras’s May 2016 request, the IPTU paralegal “assigned to
the duty of conducting FOIA searches” retrieved Sarras’s case file from “the closed Greek case
files” and “copied his entire case file.” Op. at 8 n.7 (quoting First Jones Decl. ¶ 14) (cleaned up).
12
files in the February 2022 interim response originated in the FOIA/PA unit—not IPTU). Second,
Sarras alleges that OEO improperly limited its search of IPTU records to “documents related to
[a] transfer request” (as well as “email communications regarding a case”). Pl.’s Cross Mot.
Summ. J. at 16. However, as this Court noted in its prior opinion, Sarras himself acknowledged
that IPTU “only handles treaty transfer requests.” Op. at 11 n.9 (quoting Pl.’s First Opp. Summ.
J. at 5, ECF No. 35). Therefore, OEO’s search, which was designed to capture “all [IPTU]
documents related to [a prisoner’s] transfer request,” see Jones Decl. ¶ 14, was reasonably likely
to capture all IPTU records responsive to Sarras’s May 2016 request.
In sum, the Court grants summary judgment to the government as to the adequacy of its
search in response to Sarras’s May 2016 request.
B. Withholdings
Sarras next challenges various withholdings made by the government. An agency is
entitled to summary judgment on its withholdings if it demonstrates “that its claimed FOIA
exemptions apply to each record for which they are invoked.” CREW, 525 F. Supp. 3d at 187.
Again, the agency can make this showing “through the submission of an index of documents,
known as a Vaughn Index, sufficiently detailed affidavits or declarations, or both.” Agrama, 282
F. Supp. 3d at 273. “The description and explanation the agency offers should reveal as much
detail as possible as to the nature of the document, without actually disclosing information that
deserves protection.” Oglesby v. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996)
OEO has produced a Supplemental Vaughn Index, which describes the records it
withheld in full or in part. Additionally, OEO submitted three declarations explaining the basis
of withholdings by category of exemption. Sarras opposes summary judgment on three grounds.
First, he contends that certain withheld records fail to qualify for the deliberative process
13
privilege. Second, he claims that OEO improperly redacted information under the personal
privacy exemption. And, third, he asserts that the government has failed to carry its burden as to
the rest of its withholdings due to inconsistencies and defects in its productions, declarations, and
Supplemental Vaughn Index. The Court will grant the government’s motion for summary
judgment as to the first two objections but reserves judgment on the third.
1. Exemption 5
Exemption 5 protects “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). Under this exemption, an agency is permitted to assert “the privileges that the
Government could assert in civil litigation against a private litigant,” including “the deliberative
process privilege.” Nat’l Sec. Archive v. CIA, 752 F.3d 460, 462 (D.C. Cir. 2014). The
deliberative process privilege is aimed at “enhanc[ing] the quality of agency decisions” by
ensuring that officials can “communicate candidly among themselves.” Dep’t of Interior v.
Klamath Water Users Protective Ass’n, 532 U.S. 1, 8–9 (2001) (cleaned up). To that end, courts
consider whether the record is “predecisional” and “deliberative.” Coastal States Gas Corp. v.
Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (cleaned up). A record is “predecisional” if
“it was generated before the adoption of an agency policy[.]” Id. And a record is “deliberative”
if “it reflects the give-and-take of the consultative process.” Id. The exemption thus covers
“recommendations, draft documents, proposals, suggestions,” and the like. Id.The government maintains that the information withheld under Exemption 5 “falls
squarely within the deliberative process privilege.” First McCoy Decl. ¶ 38. Sarras contests this
representation as it pertains to three sets of records: (1) the FOIA/PA Unit’s processing notes, (2)
a cover sheet for a SOU memorandum, and (3) two IPTU memoranda about Sarras’s treaty
14
transfer request (which were also at issue in the last round of summary judgment briefing). Pl.’s
Cross Mot. Summ. J. at 23–25, 29–33. The Court determines the three sets of documents fall
within the deliberative process privilege and grants the government’s motion for summary
judgment as to the Exemption 5 withholdings of those documents. 7
First, Sarras contends that two pages of FOIA/PA processing notes, marked as Document
571–72 in the Supplemental Vaughn Index, should be released because they constitute OEO’s
“policy” for handling Sarras’s still pending FOIA requests. Pl.’s Cross Mot. Summ. J. at 23–24.
A FOIA/PA Unit staff member created the notes while processing records in response to Sarras’s
May 2016 request, and the notes include “processing recommendations,” “analysis and
assessments regarding applicable exemptions,” and “research intended to assist the decision
maker,” namely the FOIA/PA Unit Chief or Deputy Chief. First McCoy Decl. ¶ 44. Because
Sarras has submitted additional FOIA requests that are still pending, OEO “continue[s] to rely on
recommendations and assessments within these processing notes to make present day processing
recommendations and disclosure evaluations.” Id. ¶ 45. Sarras does not argue that the notes lost
their deliberative process privilege because OEO adopted their reasoning when it released
documents in response to Sarras’s May 2016 request. Rather, he contends that the notes lost
their privilege because the notes, themselves, constitute OEO’s “policy” for responding to
Sarras’s still open FOIA requests. Pl.’s Cross Mot. Summ. J. at 23–24.
The FOIA/PA staffer’s “recommendations and assessments” are not OEO “policy.” An
agency’s “working law,” “binding [] opinions,” or “interpretations that the agency actually
7
As discussed below, the absence of pagination in the government’s production and
inconsistencies in its declarations and indexes preclude the Court from granting summary
judgment as to all of the government’s withholdings. But, because Sarras was able to match
some pages to Vaughn Index entries and then challenge the corresponding withholdings, the
Court resolves those challenges here.
15
applies in cases before it” rise to the level of agency policy. Elec. Frontier Found. v. DOJ, 739
F.3d 1, 7 (D.C. Cir. 2014) (cleaned up). And statements of agency policy “typically flow from a
superior with policy-making authority to a subordinate who carries out the policy.” Id. at 9(cleaned up). By contrast, “advice to a superior,” “suggested dispositions of a case,” and
proposals that can “be freely disregarded” do not constitute agency policy. Coastal States Gas
Corp., 617 F.2d at 868. The processing notes do not fit the mold of agency policy. Even if the
FOIA/PA Unit uses the notes to evaluate documents in response to Sarras’s open FOIA requests,
the notes are still recommendations from a staffer to a superior. 8 See also Def.’s Opp. at 11,
ECF No. 83 (“The processing notes serve as a mere reference and have never been adopted as a
binding policy recommendation. . . .”).
Second, Sarras seeks production of portions of a SOU cover sheet (Document 1) that are
redacted pursuant to Exemption 5. The Court finds that the deliberative process privilege applies
to the redacted information. The FBI had submitted to SOU a request to employ a bodywire as
part of an investigation into Sarras. First McCoy Decl. ¶ 46. Before SOU authorized the
bodywire, FBI sent a notice to SOU that it was withdrawing its request. Id. The Exemption-5-
redacted portions of Document 1 reflect the SOU staff member’s recommendation for approving
the FBI’s withdrawal request. Id. Sarras contends that the redacted portions are not
predecisional because “at the time the cover sheet was made, the FBI already had withdrawn its
request.” Pl.’s Cross Mot. Summ. J. at 25. But even though the FBI had already sent notice of
8
For evidence that the FOIA/PA Unit adopted the staffer’s notes as policy, Sarras points
to OEO’s violation of statutory deadlines for each of his FOIA requests (the two at issue here
and the additional five he submitted). Pl.’s Cross Mot. Summ. J. at 24. Nothing in the record
suggests, however, that OEO missed the deadlines because of a policy set forth in Documents
571–72.
16
its withdrawal request, SOU had not yet decided whether to “approve the FBI withdrawal
request.” First McCoy Decl. ¶ 46. The redacted information is still predecisional because “it
precedes [SOU’s] final withdrawal determination.” 9 Id.Finally, Sarras challenges OEO’s application of the deliberative process privilege to two
IPTU memoranda (Documents 8 and 37), which were also at issue in the previous round of
summary judgment briefing. Both memoranda contain IPTU attorneys’ analysis and
recommendations regarding Sarras’s prisoner transfer request. See Def.’s Reply, Ex. B ECF No.
39-2 (“Doc. 8”); Ex. C, ECF No. 39-2 (“Doc. 37”). OEO released both documents in substantial
part, with redactions of only certain information “prepared by the IPTU attorney” or “reflecting
the summarization and analysis of the attorney.” Def.’s Status Report, Ex. E (“Crim. Div.
Vaughn Index”) at 3, 13, ECF No. 33-1. After its 2021 opinion, the Court directed the
government to address Sarras’s contention that the withheld information in the memoranda had
lost its predecisional character—and therefore its privilege protection—because the “agency
[had] adopt[ed] the document as its own.” Judicial Watch, Inc. v. DOD, 847 F.3d 735, 739 (D.C.
Cir. 2017) (cleaned up); see Min. Order (Nov. 10, 2022). 10
9
Sarras also contends that he is entitled to summary judgment because OEO alternately
referred to Document 1 as a “covert cover sheet” and a “cover sheet memorandum.” Pl.’s Cross
Mot. Summ. J. at 25. The Court will not fault OEO for using two different phrasings as both are
accurate. Document 1 is titled “covert cover sheet” and is the “cover sheet” to a SOU
“memorandum.” Id., Ex. 2.3.
10
Specifically, the Court asked the government to address the merits of Sarras’s
argument “based on Sluss v. U.S. Department of Justice, 1:17-cv-00064, 2019 WL 2493447(D.D.C. June 14, 2019), that the Office of Enforcement Operations Director’s assent to the
International Prisoner Transfer Unit’s recommendation based on the same denial codes cited in
the Unit’s memorandums stripped the documents of their deliberative process privilege status.”
Min. Order (Nov. 10, 2022).
17
The Court finds that the OEO Directors, who served as the final decisionmakers for
Sarras’s transfer request, did not adopt the withheld portions of Documents 8 and 37 as their
own. 11 For the deliberative process privilege “to dissipate by virtue of an express adoption, the
agency must accept the document’s reasoning, not merely its conclusions.” Sluss v. DOJ, No.
17-cv-00064, 2019 WL 2493447, at *4 (D.D.C. June 14, 2019). The directors appear to have
adopted some of the reasoning in the unredacted portions of the documents. Specifically, the
IPTU attorney recommended the directors deny Sarras’s transfer request based on three denial
codes: DOMY (Plaintiff is a domiciliary of the U.S.), SROC (seriousness of the offense) and
JUST (transfer would not serve the ends of justice). Doc. 8 at 1, Doc. 37 at 1; see also First
McCoy Decl. ¶ 76. The directors then listed these denial codes as the basis for their decisions.
Doc. 8 at 5, Doc. 37 at 6. But, the directors were “not required to adopt all aspects of the
analysis presented in Document Nos. 8 and 37” in reaching their decisions. First McCoy Decl. ¶
77. And they did not. As Ms. McCoy averred, “[t]he withheld information contains facts,
analysis, and detailed thoughts and considerations of the author not adopted by the decision
maker.” Id. (emphasis added). Absent “contrary evidence in the record [or] evidence of agency
bad faith,” the court takes these declarations as made in good faith. Citizens for Responsibility
& Ethics in Washington v. Dep’t of Labor, 478 F. Supp. 2d 77, 80 (D.D.C. 2007) (cleaned up).
Sarras’s alternative argument fails for the same reason. He contends that the redacted
portions of Document 8 and 37 lost their Exemption 5 privilege because, in two letters sent to the
Hellenic Ministry of Justice, IPTU explained that it had denied Sarras’s transfer request because
Sarras was a “domiciliary” of the U.S., his offense was “serious[],” and transfer would not “serve
11
Two different individuals served as OEO Director at the time the documents were
created. See Docs. 8, 37.
18
the ends of justice”—in other words, DOMY, SROC, and JUST. See Pl.’s Cross Mot. Summ. J.
at 31–32; Def.’s Mot. Summ. J., Exs. F–G. Again, however, OEO has averred that, even though
the final decisionmakers applied the recommended denial codes, they did not adopt the reasoning
of the redacted portions of the documents. First McCoy Decl. ¶ 77.
The Court’s conclusion that the disputed documents are predecisional and deliberative
does not end the inquiry. The Court still must determine whether any of the withholdings are
subject to the FOIA Improvement Act of 2016, and, if so, whether the agency has shown that it
“reasonably foresees that disclosure would harm an interest protected by” Exemption 5. 5
U.S.C. § 552(a)(8)(A)(i)(I).
Of the challenged records, only the two IPTU treaty transfer requests (Documents 8 and
37) are subject to the FOIA Improvement Act, and OEO has demonstrated “foreseeable harm”
from disclosure. 12 The Improvement Act applies only to FOIA requests lodged after June 30,
2016, FOIA Improvement Act § 6, 130 Stat. 538, 544–545 (2016), and thus governs the response
to Sarras’s second FOIA request (submitted in August 2018) but not his first (submitted in May
2016). In the previous summary judgment motion, the parties did not parse out which
documents were identified in response to which search, presumably because OEO’s two searches
produced identical records. See Op. at 16 n.13. As a result, any record withheld in response to
Sarras’s May 2016 request was also withheld in response to his August 2018 request, triggering
12
The Court also previously withheld judgment on whether OEO satisfied the
foreseeable harm requirement for Exemption 5 withholdings on documents related to the
processing of Sarras’s FOIA requests. Op. at 18. OEO has now removed the Exemption 5
redactions from the documents at issue, mooting this issue. First McCoy Decl. ¶ 13 n.3; see also
Isasi v. Off. of Att’y Gen., No. 09-5122, 2010 WL 2574048, at *1 (D.C. Cir. June 2, 2010) (per
curiam) (“The FOIA claim against the agency was properly dismissed as moot, because the []
pages appellant had requested were subsequently released to him . . . .”)
19
the government’s obligation to justify each withholding under the Improvement Act. Id. But,
now, because OEO carried out the supplemental search only in response to Sarras’s 2016
request, parsing is necessary. OEO identified Documents 8 and 37 as part of its original searches
but did not locate the FOIA/PA processing notes (Documents 571–72) and SOU cover sheet
(Document 1) until its supplemental search. See First McCoy Decl. ¶ 15; see Supplemental
Vaughn Index. Thus, only Documents 8 and 37 are subject to the Improvement Act, and the
Court has previously determined that OEO demonstrated that their disclosure would cause
foreseeable harm. See Op. at 17.
Therefore, the Court grants the government’s motion for summary judgment as to the
legitimacy of the Exemption 5 withholdings in Documents 1, 8, 37, 571, and 572.
2. Exemption 6
FOIA Exemption 6 protects information in “personnel and medical files and similar files
when the disclosure of such information would constitute a clearly unwarranted invasion of
personal privacy.” 5 U.S.C. § 552(b)(6). Redactions must meet two requirements to fall within
Exemption 6’s ambit. First, the redactions must qualify as “personnel” files, meaning they
contain “information which applies to a particular individual.” Dep’t of State v. Washington
Post Co., 456 U.S. 595, 602 (1982). Second, “disclosure [must] compromise a substantial, as
opposed to a de minimis, privacy interest. If a substantial privacy interest is at stake, then the
court must balance the individual’s right of privacy against the public interest in disclosure.”
Prison Legal News v. Samuels, 787 F.3d 1142, 1147 (D.C. Cir. 2015) (cleaned up).
20
Sarras challenges OEO’s withholding of IPTU employees’ names and identifying
information in records released from December 2021 to December 2022. 13 Pl.’s Cross Mot.
Summ. J. at 26–27. The IPTU employees referenced in the records assisted the FOIA/PA Unit
“with making disclosure determinations” regarding IPTU records. First McCoy Decl. ¶ 62.
Sarras does not challenge the first part of the Exemption 6 test—that the redacted information
qualifies as personnel files—but does contend that disclosure “would not compromise a
substantial privacy interest and would contribute to the public’s understanding of IPTU’s
operations or activities and IPTU’s compliance with FOIA.” Pl.’s Cross Mot. Summ. J. at 26.
OEO properly withheld the names and identifying information of IPTU employees under
Exemption 6. First, disclosure would compromise the IPTU employees’ substantial privacy
interest. As OEO explained, the IPTU employees are responsible for “reviewing the details of []
treaty transfer files and making recommendations . . . [about] whether an individual should
complete his or her sentence in the United States.” Jones Decl. ¶ 33. As a result, the release of
the employees’ personal information “could subject them to harassment and unwanted
publicity.” First McCoy Decl. ¶ 60. Given the IPTU staff’s “sensitive law enforcement duties,”
id. ¶ 65, they face more than the “remote possibility of harassment,” Kleinert v. Bureau of Land
Mgmt., 132 F. Supp. 3d 79, 97 (D.D.C. 2015); see Nova Oculus Partners, LLC v. SEC, 486 F.
Supp. 3d 280, 290 (D.D.C. 2020) (agency properly invoked Exemption 6 to withhold identifying
information about the staff involved in processing a FOIA request); Jackson v. Exec. Off. for
U.S. Att’ys, No. 17-cv-02208 (TNM), 2019 WL 1046295, at *3 (D.D.C. Mar. 5, 2019)
13
Sarras also challenges Exemption 6 withholdings in Document 8 and 37, but the Court
has already granted summary judgment for the government on those withholdings. See Op. at 13
n.11. Moreover, because the rest of his Exemption 6 challenges involve documents identified in
the supplemental search, the government does not need to justify the withholdings under the
FOIA Improvement Act.
21
(Exemption 6 protected the name of a United States Attorney’s Office employee when disclosure
would have been to a federal inmate); Pinson v. DOJ, 313 F. Supp. 3d 88, 112 (D.D.C. 2018)
(Exemption 6 protected BOP employees’ telephone numbers because the individuals might be
subject to harassment); see also Seidel Decl. ¶ 21 (explaining that the FBI withheld the names of
non-FBI federal government personnel because “it is possible for a person targeted by law
enforcement to carry a grudge which may last for years, and to seek revenge on the personnel
involved in a particular investigation”). Second, the IPTU employees’ privacy interests
outweigh the public’s need to learn their names. The employees are “non-public-facing
employees” and “do not hold leadership positions.” First McCoy Decl. ¶ 61. See Vosburgh v.
IRS, No. 93-cv-1493-MA, 1994 WL 564699, at *4 (D. Or. July 5, 1994), aff’d, 106 F.3d 411(9th Cir. 1997) (“In general, public disclosure of the identities of low-level employees does not
significantly shed light on the activities or operations of the government.”). And OEO did
release the names of OEO employees who serve in a supervisory capacity or hold leadership
positions. First McCoy Decl. ¶ 55; cf. Kleinert, 132 F. Supp. 3d at 97 (Exemption 6 redactions
were improper since the agency had “categorical[ly] redact[ed] [] all its employees’ names and
email addresses”). The Court, therefore, finds that OEO properly withheld the names and
identifying information of lower-level IPTU employees in the records released from December
2021 to December 2022.
3. Remainder of the Withholdings
Because of defects and inconsistencies in the government’s productions, affidavits, and
indexes, the Court must reserve judgment on the remainder of the withholdings in the
22
government’s supplemental search releases. 14 Specifically, there are three issues that preclude
summary judgment: (1) some of OEO’s productions were not paginated and contained fully
redacted pages with no claimed exemptions, (2) OEO failed to clarify which documents from its
February 2022 release were duplicates of an earlier release, and (3) the government has not
adequately explained which documents the FBI reviewed and redacted.
a. No Pagination and Redacted Documents with No Claimed Exemptions
Sarras reports, and the government does not dispute, that three of OEO’s four
supplemental releases have no pagination. See Pl.’s Cross Mot. Summ. J. at 17–20. OEO’s
Vaughn Index, however, is organized by page number. Because the Court and Sarras cannot
match index entries to released pages, it is “impossible [in many cases] to understand which
claimed exemptions appl[y] to which documents.” Bloomgarden v. DOJ, No. 12-cv-0843
(ESH), 2016 WL 471251, at *1 (D.D.C. Feb. 5, 2016). In addition, Sarras indicates that many
pages are fully redacted and contain no indication of what exemption applies. See Pl’s Mot.
Summ. J., Ex. 2.2(b). These pages may be subsequent pages to documents whose first page lists
the claimed exemption, but—in the absence of page numbers—it is again impossible to tell
which exemption applies to which page.
b. Duplicate Documents
14
Though the Court reserves judgment as to these withholdings, the Court notes that it
previously found the government properly applied Exemptions 3, 6, and 7 to the documents
released after its original searches. See Op. at 13 n.11. The Court also now finds that the
government properly applied Exemption 5 to the documents from the original searches. See Part
B.1 above. Thus, to the extent the government can demonstrate that documents from its
February 2022 release are duplicates of previously released documents, it will be entitled to
summary judgment as to its withholdings. See also Part B.3.b below.
23
While creating the Supplemental Vaughn Index, OEO discovered that 284 pages in its
February 2022 interim release were duplicates of pages produced in the November 2019 releases.
Second McCoy Decl. ¶ 18. As a result, OEO did not include the duplicates in its supplemental
index and instead created a “Duplicate Correlation Chart” to show the overlap between the two
releases. Id. ¶¶ 21–22; see also Second McCoy Decl., Ex. A (“Correlation Chart’), ECF No. 83-
2. Two deficiencies, however, remain in the Supplemental Vaughn Index and Correlation Chart.
First, the numbers do not add up. The February 2022 interim release contained a total of
694 pages. Second McCoy Decl. ¶ 18. Of those 694 pages, OEO subsequently discovered that
284 pages were duplicates, id.; withheld four pages in full, Supplemental Vaughn Index at 4; and
released 395 pages in full, id. at 4 n.2. That accounts for 683 pages—eleven short of 694, the
total number in the February 2022 release. 15 Moreover, it is not clear to the Court how, after
OEO discovered that 284 pages in the February 2022 release were duplicates, the total number of
pages withheld in full dropped from eighty-five to four. 16 See First McCoy Decl. ¶ 34 n.8;
Second McCoy Decl. ¶ 18. Because the “agency altogether fails to explain . . . these facial
inconsistencies[,] . . . summary judgment in its favor is inappropriate.” Bartko v. DOJ, No. 13-
cv-1135 (JEB), 2015 WL 13673009, at *5 (D.D.C. June 2, 2015); see also id. (“In the end, the
15
Footnote 2 in the Vaughn Index notes that 395 pages from the February 2022 interim
response were released in full and then lists the page ranges for released documents.
Supplemental Vaughn Index at 4 n.2. By the Court’s count, there are actually 398 pages listed in
Footnote 2. In any event, OEO has still failed to account for eight of the 694 pages in the
February 2022 release.
16
What is more, the First McCoy Declaration notes that OEO found 338 duplicates
while the Second McCoy Declaration mysteriously reduces that number to 284. See First
McCoy Decl. ¶ 34 n.8; Second McCoy Decl. ¶ 18. For purposes of its current analysis, the Court
will use 284 as the operative number, “but simply providing slightly different sworn statements
with each subsequent [filing], without explaining the discrepancies that exist in prior sworn
statements, will not do.” Pinson, 313 F. Supp. 3d at 128.
24
Court is left bewildered as to the precise number of documents being withheld in full, and it will
not comb through the agency’s Vaughn Index in an attempt to divine the breakdown on its
own.”)
Second, the Correlation Chart, which purports to match pages from the February 2022
release with their duplicates from the November 2019 release, is also inaccurate. As Sarras
points out, for at least two entries, the number of pages in the February 2022 release does not
match the number of pages in the November 2019 release. See Pl.’s Reply at 10 (noting that
pages 299–313 from the February 2022 release correspond to a document that is only four pages
long). There may be a simple explanation for this mismatch. Indeed, OEO explained that some
pages—namely those marked as referred to BOP (which do not include the entries Sarras
flagged)—were duplicated more than once. 17 Correlation Chart at 4 n.1. But the Court cannot
substitute guesswork for an explanation from the agency. 18 See also Plunkett v. DOJ, No. 11-cv-
0341 (RDM), 2015 WL 5159489, at *10 (D.D.C. Sept. 1, 2015) (denying summary judgment
because the Court was “simply left to guess” about withholdings because of insufficient
information in the agency’s declaration and Vaughn index).
17
The Correlation Chart also indicates that certain records not referred to BOP were also
duplicated more than once (e.g., pages 21–30 from the November 2019 release appear to have
been duplicated three times). See Correlation Chart. But, again, the Court’s “reasonable
guesses” are not adequate replacements for “specific clarification” from the agency. Negley v.
FBI, 169 F. App’x 591, 595 (D.C. Cir. 2006).
18
Sarras challenges additional features of the February 2022 release (e.g., that OEO
misapplied Exemption 5 to two records, that OEO did not explain its segregation efforts, and that
some of the pages were referred to BOP and yet OEO claims BOP is no longer a party to the
action). Pl.’s Cross Mot. Summ. J. at 19, 28. Because of the ambiguities created by the current
Supplemental Vaughn Index and Correlation Chart, the Court reserves judgment on these issues.
25
c. FBI Records
The government’s description of its treatment of pages 1–59 of the April 18, 2022
Response, which involve records sent to the FBI for consultation, also contains several
inaccuracies. First, the Supplemental Vaughn Index indicates that for pages 12–59 (a total of
forty-eight pages), forty-three pages were withheld in full and one was released in part.
Supplemental Crim Div. Vaughn Index at 6. What happened to the remaining four pages?
Second, according to the Seidel Declaration, the FBI processed a total of ten pages in response to
two consultation requests from DOJ. Seidel Decl. ¶ 4. But more than ten pages contain the
exemption “(b)(7)(E) – Per FBI.” See Supplemental Vaughn Index at 4–6 (listing the “Per FBI”
exemption next to Pages 1–59). Third and relatedly, the Seidel Declaration suggests that all the
documents OEO referred to the FBI are “FBI-originated records” or “pages,” in other words
documents authored by FBI staff. 19 Seidel Decl. ¶¶ 5, 7. Document 1 (described above),
however, contains the “Per FBI” redaction, and yet is a “cover sheet memorandum [authored] by
an SOU staff member.” 20 First McCoy Decl. ¶ 46; Pl.’s Cross Mot. Summ. J., Ex. SJ2.3 at 1.
“[T]rivial” defects, such as “typographical errors and minor ambiguities,” do not defeat an
agency’s motion for summary judgment. SafeCard Servs., 926 F.2d at 1202. But the defects
19
On this point too, the Seidel Declaration has internal consistencies. After describing
OEO’s two consultation requests, in which OEO sent ten FBI-originated pages, the Seidel
Declaration states that “DOJ CRM located responsive law enforcement records that originated
with the FBI or contain FBI information.” Seidel Decl. ¶¶ 5–7, 9. Did the FBI review both FBI-
originated documents, as well as other documents that contained FBI information? How many
documents did the FBI review in total? Did OEO apply a “Per FBI” exemption to documents the
FBI did not review? Because these questions remain unanswered, summary judgment is not
appropriate. See Scudder v. CIA, 25 F. Supp. 3d 19, 49 (D.D.C. 2014).
20
The Supplemental Vaughn Index also lists Document 2 (the memorandum that
corresponds to Document 1) as from “FBI Staff” when it is actually from SOU staff. Pl.’s Cross
Mot. Summ. J. at 25. As part of clarifying which records originated with the FBI and underwent
FBI review, the Court expects the government to correct this error.
26
identified here are not trivial. They prevent the Court from assessing whether the “claimed
FOIA exemptions apply to each record for which they are invoked.” CREW, 525 F. Supp. 3d at
187.
The Court therefore reserves judgment as to the validity of the government’s
withholdings (other than those noted in Parts B.1 and B.2). The Court directs the government to
paginate all redacted pages in the three unpaginated releases so that the Court can match
withholdings to Vaughn Index entries. The Court further directs the government to provide a
corrected Vaughn Index or additional declarations to address the inaccuracies and
inconsistencies described above.
C. Department of State Record
Finally, the Court grants the government’s summary judgment motion as to the record
referred to the Department of State. In its previous opinion, the Court requested clarification
about whether the second page, in a two-page record referred to the State Department,
“remain[ed] to be produced or was withheld pursuant to a privilege.” Op at 20. OEO has since
clarified. Ms. McCoy explained that the two pages in the State Department referral were a
verbal notice and a photocopy of an envelope. Second McCoy Decl. ¶ 26. Initially, the State
Department processed only the verbal notice and issued it to Sarras with redactions. Id. ¶ 27;
Crim. Div. Vaughn Index at 9. After the Court’s August 2021 opinion, OEO requested that the
State Department process the envelope. Second McCoy Decl. ¶ 27. The State Department
complied, and OEO produced the envelope to Sarras without redactions. Id.; Pl.’s Cross Mot.
Summ. J., Ex. 2.4 at 1. Since the government has now produced the second page, it is entitled to
summary judgment as to that record. See Perry, 684 F.2d at 125 (“[H]owever fitful or delayed
27
the release of information under the FOIA may be, once all requested records are surrendered,
federal courts have no further statutory function to perform.”).
IV. Conclusion
For the foregoing reasons, it is hereby
ORDERED that [72] Defendant’s Motion for Summary Judgment is GRANTED in part;
ORDERED that [78] Plaintiff’s Cross-Motion for Summary Judgment is DENIED in
part;
ORDERED that the government shall, by November 13, 2023, paginate and release to
Sarras the pages from previous releases that were unpaginated and were redacted in part or in
full; by November 13, 2023, the government shall also submit a supplemental memorandum in
support of summary judgment, accompanied by a revised Vaughn Index or supplemental
declarations, addressing the issues on which the Court reserved judgment; Sarras shall file any
response to the government’s memorandum by December 13, 2023; and the government shall
file any reply by January 3, 2024.
SO ORDERED.
CHRISTOPHER R. COOPER
United States District Judge
Date: September 27, 2023
28