Barouch v. U.S. Department of Justice
2013 U.S. Dist. LEXIS 119780
| D.D.C. | 2013Background
- Plaintiff David Barouch, proceeding pro se, filed FOIA and Privacy Act claims against DOJ components (CRM, USMS, EOUSA, BOP, ATF) and Treasury over requests for records about himself.
- Treasury allegedly did not receive Barouch's request, while other agencies conducted searches and produced some records with some redactions.
- Barouch's April–May 2011 requests sought full disclosure of all records tied to him, including identifiers and case details.
- EOUSA later referred additional documents to ATF, CRM, and BOP after suit was filed; EOUSA disclosed 159 pages, withheld 282, and referred more to others.
- The court found the plaintiff exhausted administrative remedies against EOUSA and certain others but not all agencies; it ordered partial disclosure and remand for BOP review of documents referred by EOUSA.
- The court conducted in-camera review for four EOUSA documents and approved most withholdings, while remanding to BOP for production or justification of withheld materials.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Barouch exhausted administrative remedies | Barouch exhausted FOIA remedies against all agencies. | Exhaustion varied by agency; some agencies lacked timely responses. | Partial exhaustion; EOUSA exhausted constructively; ATF and BOP review partially barred or remanded. |
| Whether agency searches were adequate | Searches were incomplete and failed to locate all responsive records. | Affidavits show searches were reasonably calculated to uncover records. | Searches were adequate for CRM, USMS, EOUSA; no showing of bad faith; missing tapes not fatal to adequacy. |
| Whether FOIA exemptions were properly applied | Exemptions improperly withheld non-exempt material and overbroad redactions. | Exemptions (b)(5), (b)(7)(C), (b)(7)(E) properly invoked; Vaughn indices adequate. | CRM's (b)(5) work-product withholding upheld; USMS/ATF/EOUSA (b)(7)(C) justified; EOUSA (b)(3)/(b)(5)/(b)(7)(C) justified with some required segregable disclosures. |
| Privacy Act challenges and jurisdiction | Privacy Act disclosures should follow FOIA-like process; challenges should proceed. | Exhaustion required under Privacy Act; some claims barred for lack of exhaustion; EOUSA privacy claims dismissed for lack of jurisdiction. | Plaintiff's Privacy Act challenges against CRM, ATF, BOP barred; EOUSA privacy claims barred for lack of exhaustion; USMS privacy claims reviewed on merits. |
| What relief is proper | All responsive records should be disclosed; exculpatory material should be released. | Withholdings justified; remaining segregable material should be released where possible. | EOUSA to disclose four documents' segregable portions; remand to BOP to process EOUSA-referred documents or justify withholdings. |
Key Cases Cited
- Abraham v. Abramson, 456 U.S. 615 (1982) (FOIA exemptions narrowly construed; applying exemptions appropriately)
- Oglesby v. U.S. Dep't of Army, 920 F.2d 57 (D.C. Cir. 1990) (two-part FOIA test: search adequacy and exemption application)
- Nation Magazine Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885 (D.C. Cir. 1995) (privacy vs public interest under exemptions; segregability concerns)
- Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978) (in camera review discretion in FOIA cases)
- Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978) (adequacy of search; fruits of search not determinative of validity of method)
- Weisberg v. DOJ, 705 F.2d 1344 (D.C. Cir. 1983) (presumption of good faith in agency affidavits; burden on challenger to show bad faith)