391 F. Supp. 3d 353
S.D. Ill.2019Background
- Plaintiff Louis Flores (pro se) filed a FOIA request seeking records relating to speeches by then-U.S. Attorney Preet Bharara, including transcripts, recordings, travel/cost reports, and retention/recording policies; he sought expedited processing and a fee waiver.
- EOUSA initially denied expedited processing and the fee waiver, assessed fees that resulted in closure when unpaid, later remanded and then granted a fee waiver on public-interest grounds; SDNY conducted searches thereafter.
- The government produced records in three main releases (DVDs/flash drives/hardcopy), totaling over 2,000 pages and multiple videos; some pages were withheld in full or in part under FOIA exemptions (b)(5) and (b)(6), and some were determined nonresponsive.
- After filing a summary-judgment motion the defendant conducted additional voluntary searches, found and produced further responsive pages, and supplemented the Vaughn index and productions.
- Flores alleged the search was inadequate and in bad faith because certain speeches and drafts/notes were not produced, challenged exemptions and the Vaughn index treatment of some withheld items, and sought reassignment for alleged bias.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of search | Flores: search failed to locate records of three specific speeches and drafts/notes; thus search was inadequate and in bad faith | DOJ: described detailed, reasonable searches across press office, internal networks, assistants, budget systems, storage; later voluntary supplemental searches; produced responsive materials | Court: search was reasonably calculated and adequate; supplemental searches bolster good faith, not the opposite |
| Withholding under exemptions (b)(5) and (b)(6) | Flores: DOJ misapplied exemptions and withheld materials improperly (raised in sur-reply) | DOJ: explained redactions and withholdings; (b)(6) covers similar personal files and was appropriately applied | Court: declined to consider new exemption arguments raised first in sur-reply; in any event DOJ justification adequate |
| Treatment of "nonresponsive" items in Vaughn index | Flores: items listed as nonresponsive should be produced or better explained; produced redundancies show inconsistent responsiveness determinations | DOJ: listing nonresponsive items in Vaughn was discretionary; redundancies arose from attempts to accommodate plaintiff and do not make search inadequate | Court: defendant not required to include nonresponsive items in Vaughn; no evidence of improper responsiveness determinations |
| Request for reassignment / recusal | Flores: renewed request for impartial judge | DOJ: procedural default; no evidence of bias | Court: request denied; movant failed to show personal bias or follow procedures |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (establishes summary judgment burden-shifting framework)
- Anderson v. Liberty Lobby, 477 U.S. 242 (defines materiality and genuine dispute standard for summary judgment)
- Grand Cent. P'ship v. Cuomo, 166 F.3d 473 (search must be reasonably calculated to uncover responsive records, not perfect)
- Carney v. U.S. Dep't of Justice, 19 F.3d 807 (agency affidavits in FOIA suits generally support summary judgment)
- Safecard Servs., Inc. v. SEC, 926 F.2d 1197 (agency affidavits accorded a presumption of good faith)
- Vaughn v. Rosen, 484 F.2d 820 (establishes requirement to index withheld documents and justify exemptions)