311 F. Supp. 3d 223
D.C. Cir.2018Background
- Plaintiff Ryan Bagwell filed a FOIA request with EOUSA seeking records (Nov 1, 2011–Apr 30, 2014) about alleged child sexual abuse at Penn State and investigations into Jerry Sandusky; suit followed after EOUSA missed statutory deadlines.
- EOUSA produced some records, withheld others, and the parties filed cross-motions for summary judgment challenging adequacy of search and asserted FOIA exemptions.
- The District Court previously found EOUSA’s initial declarations and Vaughn index insufficient and ordered additional searches and supplemental affidavits; EOUSA then conducted a second search including six U.S. Attorney’s Office email accounts using four search terms.
- Bagwell renewed challenges: (1) adequacy of the email search terms, (2) EOUSA’s referral of records to other agencies (notably the Department of Education), and (3) withholdings under FOIA Exemptions 5 (deliberative process and work product) and 7(A) (law-enforcement interference), including Pennsylvania grand jury materials.
- The Court found the "Pennsylvania State University" search term facially under-inclusive (omitting "Penn State"/"PSU"), requiring further meet-and-confer and an additional search; it also found EOUSA improperly withheld records referred to the Department of Education and that EOUSA failed to justify withholding certain state grand jury materials under Exemption 7(A).
- The Court sustained most Exemption 5 withholdings (attorney work product and deliberative process) but ordered in camera submission of samples of certain grand jury-subpoena letters and reserved on some exemptions pending further justification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of EOUSA email search | EOUSA's search terms were under‑inclusive (e.g., omitted "Penn State" and "PSU"; possibly omitted "Second Mile") and therefore not reasonably calculated to find responsive records | EOUSA searched six likely accounts with four terms (including full university name and "Freeh") and produced many responsive emails; search presumed in good faith | Search inadequate because "Pennsylvania State University" likely missed common usages; parties ordered to meet and confer on additional limited terms and EOUSA to re-search; motions denied without prejudice on this issue |
| Referral of records to other agencies | Referring records to other agencies (e.g., Dept. of Education) without producing or properly justifying withholding is an improper constructive withholding | Agencies can refer records to originating/other agencies for processing; referrals are permissible if they don't unreasonably delay or impair requester’s access and if referring agency gives reasonable explanation | Records referred to agencies that have responded are moot; records referred to Department of Education are improperly withheld because DOJ produced no response — DOJ must produce or justify withholding those records |
| Withholding Pennsylvania grand jury materials under Exemption 7(A) | Withholding is improper because EOUSA failed to explain how disclosure would interfere with ongoing proceedings | EOUSA says materials relate to state grand jury proceedings and release could interfere with ongoing proceedings (Sandusky post-conviction matters) | EOUSA failed to provide specific, non-conclusory explanations of how disclosure would interfere; Court denied summary judgment for DOE on 7(A) and ordered DOJ to submit fuller declarations or assert alternative bases (or produce) |
| Withholdings under Exemption 5 (attorney work product and deliberative process) | Many withholdings are overbroad or not shown to be prepared in anticipation of litigation | EOUSA contends documents were created during active investigation by attorneys and reflect work product and predecisional deliberations; submitted declarations and Vaughn index | Court sustained most Exemption 5 withholdings: work-product and deliberative process protections apply to most challenged emails/memos; ordered in camera review of representative grand‑jury subpoena letters and sustained partial redactions under work product for several items |
Key Cases Cited
- Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504 (D.C. Cir.) (agency must show search was reasonably calculated to uncover all relevant documents)
- Valencia‑Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir.) (agency must search all places likely to turn up requested information)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir.) (agency declarations presumptively in good faith; work‑product protection principles)
- Sussman v. U.S. Marshals Serv., 494 F.3d 1106 (D.C. Cir.) (Exemption 7(A) requires specific showing how disclosure would interfere with enforcement)
- Bevis v. Dep't of State, 801 F.2d 1386 (D.C. Cir.) (requirements for categorical withholding under Exemption 7)
- Crooker v. Bureau of Alcohol, Tobacco & Firearms, 789 F.2d 64 (D.C. Cir.) (functional definition of categories for categorical withholding)
- Nat'l Ass'n of Criminal Defense Lawyers v. Dep't of Justice Exec. Office for U.S. Att'ys, 844 F.3d 246 (D.C. Cir.) (work‑product standard for documents prepared in anticipation of litigation)
- In re Sealed Case, 146 F.3d 881 (D.C. Cir.) (work‑product privilege scope)
- Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854 (D.C. Cir.) (deliberative process privilege elements)