Ellis v. United States Department of Justice
110 F. Supp. 3d 99
| D.D.C. | 2015Background
- Plaintiff Anthony Ellis, indicted on federal drug and firearm charges based partly on wiretap evidence, filed a FOIA request with DOJ seeking Title III (wiretap) authorization letters and related approval documents for three telephone numbers.
- DOJ’s Office of Enforcement Operations initially responded that responsive records, if any, were exempt under FOIA Exemption 3 (Title III statutory protections); Ellis administratively appealed and then sued when he received no substantive appeal decision.
- DOJ (Criminal Division) later searched two systems (the OEO Title III database and the Criminal Division’s archived email system) and located ~3,328 documents, releasing 677 pages and withholding about 2,651 pages in full under FOIA Exemptions 5, 6, and 7(C).
- DOJ moved for summary judgment asserting its search was adequate, withheld records properly (predominantly under Exemption 5’s attorney work-product doctrine), and that segregability analysis was unnecessary for fully protected work-product documents.
- The Court reviewed adequacy of the search (including challenges that DOJ waited until after suit, failed to search certain indices, and did not perform a separate Privacy Act search) and whether withheld material was protected by Exemption 5 work-product privilege.
- The Court granted summary judgment for DOJ: the search was reasonably calculated and adequate; withheld categories (wiretap applications, drafts, internal emails, action memoranda, authorization memoranda, and supervisory approval letters) were protected by the attorney work-product component of Exemption 5; segregability review was not required for fully protected work-product documents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of FOIA search | Search was inadequate, late (post-suit), and done in bad faith; DOJ should have searched FBI/EOUSA indices and other DOJ indices | DOJ searched the two components (OEO Title III database and archived Criminal Division email) most likely to contain responsive records; suit timing does not defeat adequacy; other components were outside searched component’s control | Search was adequate and reasonable; delay did not render it insufficient and bad-faith allegation unsupported |
| Scope of components searched | DOJ should have searched FBI indices (ELSUR/CRS), EOUSA indices, and Criminal Division "003" index | Requested records concern approval documents (Title III database) and related attorney emails; FBI/EOUSA indices are controlled by other components; "003" (names-index) was not relevant to phone-number–based request | DOJ not required to search indices outside the Criminal Division; searching Title III database and relevant archived emails was sufficient |
| Privacy Act search obligation | DOJ failed to conduct a separate Privacy Act search | FOIA/Privacy Act search standards are coextensive; plaintiff did not clearly pursue Privacy Act relief | No separate Privacy Act search required; FOIA search met Privacy Act standard |
| Withholding under Exemption 5 (work product) | Government-misconduct exception or public interest should overcome privilege | Documents (applications, drafts, internal emails, action memos, authorization letters) were prepared because of foreseeable criminal litigation and are classic work product | Exemption 5 (attorney work-product) applies to the withheld categories; plaintiff did not show extreme government misconduct to overcome privilege |
Key Cases Cited
- Valencia-Lucena v. Coast Guard, 180 F.3d 321 (D.C. Cir. 1999) (standard for adequacy of FOIA search)
- Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981) (agency affidavits may support summary judgment in FOIA when detailed and uncontroverted)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (presumption of agency good faith; rebuttal requires more than speculation)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (Exemption 5 protects materials privileged in civil discovery)
- FTC v. Boehringer Ingelheim Pharms. Inc., 778 F.3d 142 (D.C. Cir. 2015) ("because-of" test for work-product protection)
- United States v. Deloitte LLP, 610 F.3d 129 (D.C. Cir. 2010) (work-product inquires whether document would exist in substantially similar form absent litigation)
- In re Sealed Case, 146 F.3d 881 (D.C. Cir. 1998) (subjective and objectively reasonable belief of impending litigation required for work-product)
- Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (FOIA places burden on agency and mandates a presumption in favor of disclosure)
- Department of Justice v. Tax Analysts, 492 U.S. 136 (1989) (agency bears ultimate burden under FOIA)