Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________
)
WILLIE E. BOYD, )
)
Plaintiff, )
) v. ) Civil Action No. 13-1304 (ABJ) )
EXECUTIVE OFFICE FOR )
UNITED STATES ATTORNEYS, et al. , )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
Plaintiff Willie E. Boyd brought this
pro se
action against defendants the Executive Office
for United States Attorney (“EOUSA”) and the Bureau of Alcohol, Tobacco & Firearms (“ATF”)
under the Freedom of Information Act (“FOIA”). Compl. [Dkt. # 1]. On March 31, 2015, the
Court remanded part of the case so that EOUSA could determine whether four specific documents
had been properly withheld.
See Boyd v. EOUSA
,
Defendants have filed a “Second Renewed Motion for Summary Judgment.” Defs.’ Second Renewed Mot. for Summ. J. [Dkt. # 50] (“Defs.’ Mot.”); Mem. in Supp. of Defs.’ Mot. [Dkt. # 50-1] (“Defs.’ Mem.”); see also Pl.’s Resp. to Mem. of Law in Supp. of Defs. Mot. [Dkt. # 55] (“Pl.’s 2d Opp.”). The pending motion for summary judgment relates solely to the *2 documents from the Treasury Department that the agency claims were properly withheld. Plaintiff has since represented to the Court that he “seeks not to pursue a challenge to those documents of the FOIA exemptions by Treasury, and waive[s] all rights to the information being withheld.” Pl.’s 2d Opp. at 1. Therefore, because plaintiff has conceded defendants’ motion, the Court will grant it.
With respect to the four remaining EOUSA records, plaintiff opposed their withholding in his opposition to defendants’ earlier motion for summary judgment and cross-motion for summary judgment, Pl.’s Opp. Mot. to Defs.’ Renewed Mot. for Summ. J. & Cross-Mot. for Summ. J. [Dkt. # 28], but he has not further challenged EOUSA’s withholding of the documents in the wake of the Court’s March 31 Order.
For the reasons that follow, the Court will grant judgment in favor of defendants in part and deny it in part. The Court finds that defendants properly withheld documents 1 and 3, but that a specific sentence in documents 6 and 8 should be released. Defendants shall, by January 4, 2016, file a notice with the Court that they have released the records to plaintiff.
BACKGROUND
Plaintiff is a federal prisoner confined at the Federal Correctional Institute in Greenville,
Illinois.
See
Compl. at 1. He was convicted of multiple criminal offenses after a bench trial in the
Eastern District of Missouri in 1998.
United States v. Boyd
,
Since 1998, plaintiff has filed numerous
pro se
FOIA actions in this District against the
defendants in this case and other government agencies.
See, e.g.
,
Boyd v. EOUSA
, 741 F. Supp.
2d 150 (D.D.C. 2010) (FOIA lawsuit against EOUSA);
Boyd v. ATF
,
On March 26, 2013, plaintiff submitted a FOIA request to EOUSA that sought “any and all documents, records, and information in [his] criminal case United States v. Willie E. Boyd , 4:97CR301, in the Eastern District of Missouri.” App. “Count I” to Compl. [Dkt. # 1] at ECF 8 (“FOIA Req.”). [1] Plaintiff’s request explained that he sought “information from the criminal case file that would expose the bad-faith nondisclosure of Brady/Giglio/Jencks and Rule 16 materials and information of governmental misconduct with the didcovery [sic] materials in the case.” Id.
On February 27, 2014, EOUSA disclosed to plaintiff 201 pages of responsive records in
full and 267 pages with redactions.
Boyd
,
responses to those requests were also a part of this litigation, but because they are not relevant to this Memorandum Opinion, the Court will not address them further.
Plaintiff filed this action on August 28, 2013. Compl. The Court granted plaintiff leave to amend his complaint on March 5, 2014. Min. Order (Mar. 5, 2014); see also Am. Compl. [Dkt. # 15].
On March 18, 2014, defendants moved for summary judgment, Defs.’ Mot. for Summ. J. [Dkt. # 17], but because the motion did not address Count 3 of plaintiff’s amended complaint, the Court afforded defendants an opportunity to file a renewed motion. Min. Order (Apr. 22, 2014). Defendants filed the renewed motion on June 23, 2014. Defs.’ Renewed Mot. for Summ. J. [Dkt. # 20]. On October 27, 2014, plaintiff filed a combined memorandum in opposition to defendants’ renewed motion for summary judgment and cross-motion for summary judgment. Pl.’s Opp Mot. to Defs.’ Mot. for Summ. J. & Pl.’s Cross-Mot. for Summ. J. [Dkt. # 28] (“Pl.’s 1st Opp.”).
On March 31, 2015, the Court ruled on the cross-motions.
Boyd
,
Most recently, defendants moved for summary judgment on the Treasury documents. Defs.’ Mot. Plaintiff responded to defendants’ motion and represented that he “seeks not to pursue a challenge to those documents of the FOIA exemptions by Treasury, and waive[s] all rights to the information being withheld.” Pl.’s 2d Opp. at 1.
On November 3, 2015, the Court ordered defendant EOUSA to file a supplemental memorandum explaining why it claimed that the work-product privilege justified withholding one of the four challenged documents. Min. Order (Nov. 3, 2015). EOUSA responded to the Court’s Order, and explained that it was no longer relying on the work-product privilege as a justification for the withholding of document 1, but that it continued to rely on the Privacy Act and on Exemptions (6) and (7)(C). 2d Suppl. Decl. of David Luczynski [Dkt. # 58-1] ¶ 4 (“2d Supp. Luczynski Decl.”). [2]
STANDARD OF REVIEW
In a FOIA case, the district court reviews the agency’s action
de novo
and “the burden is
on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B);
accord Military Audit Project v.
Casey
,
2 Defendant EOUSA originally filed a response to the Court’s Order on November 13, 2015. See Defs.’ Submission of Suppl. Decl. [Dkt. # 57]. However, on November 16, 2015, defendant filed an amended version of its response. Defs.’ Am. Submission of Suppl. Decl. [Dkt. # 58]. For purposes of this opinion, the Court considers only the amended response.
While the same legal framework applies in every case, where a plaintiff proceeds
pro se
,
“the Court must take particular care to construe the plaintiff's filings liberally, for such complaints
are held ‘to less stringent standards than formal pleadings drafted by lawyers.’”
Cheeks v. Fort
Myer Constr. Co.
,
ANALYSIS
FOIA requires the release of government records upon request. Its purpose is “to ensure
an informed citizenry, vital to the functioning of a democratic society, needed to check against
corruption and to hold the governors accountable to the governed.”
NLRB v. Robbins Tire &
Rubber Co.
,
To prevail in a FOIA action, an agency must first demonstrate that it has “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. U.S. Dep’t of Army
,
After asserting and explaining its exemptions, an agency must release “[a]ny reasonably
segregable portion of a record,” 5 U.S.C. § 552(b), unless the non-exempt portions are
“inextricably intertwined with exempt portions” of the record.
Mead Data Central, Inc. v. U.S.
Dep’t of Air Force
,
3
Based on the limited nature of the remand in this action, and because the Court has already
determined that EOUSA’s search was adequate,
see Boyd
,
Because a court must determine
de novo
whether an agency properly withheld information,
a court may examine the withheld records
in camera
. 5 U.S.C. § 552(a)(4)(B);
Carter v. U.S.
Dep’t of Commerce
,
EOUSA claims that FOIA exemptions 3, 5, 6, and 7C
[4]
, and Privacy Act exemption (j)(2)
[5]
protect the documents from disclosure.
Vaughn
Index at 1–2, 4–6. Specifically, EOUSA contends
4
Exemption 7(C) protects information that was (1) compiled for law enforcement purposes,
if (2) the disclosure “could reasonably be expected to constitute an unwarranted invasion of
personal privacy.” 5 U.S.C. § 552(b)(7)(C). The Court has already found that the documents at
issue here can be redacted in part under that Exemption.
Boyd
,
5
The Privacy Act provides that “[e]ach agency that maintains a system of records shall . . .
upon request by any individual to gain access to his record or to any information pertaining to him
which is contained in the system, permit him . . . to review the record and have a copy made of all
or any portion thereof in a form comprehensible to him . . . .” 5 U.S.C. § 552a(d)(1). Exemption
(j)(2) applies, in relevant part, to records that are: (1) stored in a system of records that has been
designated by an agency to be exempt from the Privacy Act’s disclosure requirements; and (2)
stored in a system that is “maintained by an agency or component thereof which performs as its
principal function any activity pertaining to the enforcement of criminal laws,” and that consists
of “information compiled for the purpose of a criminal investigation.”
Id.
§ 552a(j)(2)(B). The
Court previously concluded that “EOUSA properly determined that Privacy Act Exemption (j)(2)
applies to the records sought by plaintiff in this case.”
Boyd
,
that document 1 is protected by Exemptions 6, and 7(C), document 3 is protected by Exemption 3, document 6 is protected by Exemption 5, and document 8 is protected by Exemptions 3 and 5. The Court will consider each document in turn.
I. Document 1
EOUSA originally claimed that Document 1 was exempt from disclosure under Exemption 5, because it reflected attorney work product. See Vaughn Index at 1. The Court’s March 31, 2015 opinion, in denying defendants’ motion for summary judgment, explained its confusion with defendants’ assertion of this privilege:
First, EOUSA has not explained how copies of interviews of third parties constitute inter-agency or intra-agency memorandums or letters. Second, EOUSA has not explained why such a record would reflect the mental processes of the attorney. And, third, EOUSA has not stated that this record preceded any particular decision, or explained how it reflects the give-and- take of the consultative process.
Boyd
,
In order for particular records to qualify for Exemption 7(C), the agency must first
demonstrate that the documents were compiled for law enforcement purposes.
See Rural Hous.
Alliance v. U.S. Dep’t of Agric.
,
In this Circuit, where a FOIA request for law enforcement records invokes the privacy
interests of any third party mentioned in those records (including investigators, suspects, witnesses,
and informants), the exemption applies unless there is an overriding public interest in disclosure.
See Schrecker v. U.S. Dep’t of Justice
,
A. There is a privacy interest in the withheld information.
The Court’s review of document 1 in camera confirms defendants’ statements in their Vaughn index that document 1 consists of interview reports and memoranda that document the conversations with various third-party individuals that took place during the investigation and prosecution of plaintiff. See Vaughn Index at 1; 2d Suppl. Luczynski Decl. ¶¶ 11–12.
Individuals who are involved in law-enforcement investigations, such as targets, witnesses,
complainants, and investigators, have a privacy interest in the non-disclosure of their identities.
Comput. Prof’ls for Social Responsibility v. U.S. Secret Serv.
,
Courts in this district agree that Exemption 7(C) protects not only those individuals’ names
or other discrete personally-identifiable information, but also, more generally, “records and
information that would reveal [the individual’s] identity.”
Nat’l Whistleblower Center v. Dep’t of
Health & Human Servs.
, 849 F. Supp. 2d 13, 29–30 (D.D.C. 2012);
see also
5 U.S.C.
§ 552(b)(7)(C). Mere redactions of a person’s name is not always sufficient to protect a person’s
identity. As the Supreme Court has explained in a case about records of honors and ethics hearings
at the Air Force Academy: “what constitutes identifying information regarding a subject cadet
must be weighed not only from the viewpoint of the public, but also from the vantage of those who
would have been familiar, as fellow cadets or Academy staff, with other aspects of his career at
the Academy.”
Dep’t of Air Force v. Rose
,
So, where a person’s identity might be revealed based on the content of the document,
courts have permitted agencies to withhold the records in their entirety under Exemption 7(C). As
the U.S. Court of Appeals for the Tenth Circuit has explained, where “the requested documents
7
The Supreme Court’s opinion in
Rose
was discussing Exemption 6.
relate[d] to a few incidents involving about a dozen people,” the agency could properly withhold
the documents, because “[e]ven sanitized, these documents would enable [the plaintiff] and others
who had specific knowledge of these incidents, to identify readily the informant and persons
discussed in each document.”
Alirez v. NLRB
,
reveal[ed] threats of physical violence and retaliation at work against fellow employees involved in [the plaintiff’s] dispute with his employer, allegations of assaultive conduct on the part of [the plaintiff], explicit charges of sexual deviancy on the part of another individual, and, in one instance, statements of an employee about his attitude towards unionization.
Id. Because the FOIA plaintiff could readily identify the parties, even with the names redacted, the court held that “[t]he deletion of names and other identifying data ordered by the district court [was] inadequate to prevent serious privacy invasions.” Id. at 427.
In criminal cases such as this one, the privacy interest does not substantially dissipate after
the defendant’s trial, because even after a prosecution has concluded, a person who cooperated
with the government’s investigation retains a privacy interest in the nondisclosure of his or her
identity. As the D.C. Circuit has explained, “the mention of an individual’s name in a law
enforcement file will engender comment and speculation and carries a stigmatizing connotation.”
See Roth v. U.S. Dep’t of Justice
,
Plaintiff was convicted in April 1998,
Boyd
,
B. There is no overriding public interest in disclosure, and none of the information is segregable.
Plaintiff has argued that the interview memoranda at issue here would “expose the bad-
faith nondisclosure of Brady/Giglio/Jencks and Rule 16 materials and information of governmental
misconduct with the discovery materials.” FOIA Req. at 8. But “disclosure in criminal trials is
based on different legal standards than disclosure under FOIA, which turns on whether a document
would usually be discoverable in a civil case.”
Williams & Connolly v. SEC
,
Even if plaintiff could show a nexus between these documents and the alleged discovery
violations, courts have consistently held that FOIA’s limited purpose is to protect the right of the
people to be “informed about what their government is up to.”
Roth
,
The next question is whether there is any portion of document 1 that should be withheld as
not reasonably segregable from the names, identifying information, and statements of the
witnesses. 5 U.S.C. § 552(b);
Mead Data
,
II. Document 3
Defendant EOUSA contends that document 3 is exempt from disclosure under FOIA Exemption 3, which permits an agency to withhold information that is “specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3). EOUSA invokes Exemption 3 in conjunction with a provision of the Ethics in Government Act. Vaughn Index at 2, citing 5 U.S.C. app. 4 § 107(a)(2). The Ethics in Government Act provides that, when a government ethics office requires its employees to file confidential financial disclosure reports, those reports “shall be confidential and shall not be disclosed to the public.” 5 U.S.C. app. 4 § 107(a)(2).
The Court has reviewed document 3 in camera – the document is, as EOUSA asserts, a “Conflict of Interest Certification.” The Court is satisfied that EOUSA has properly withheld this document under the Ethics in Government Act because the document appears to be the kind of confidential financial disclosure report that is protected by that statute. See 5 U.S.C. app. 4 § 107(a)(2).
III. Documents 6 and 8
EOUSA claims that documents 6 and 8 are protected by Exemption 5, and that document 8 is further protected by Exemption 3. Vaughn Index at 4–6.
A.
Exemption 3 – Federal Rule of Criminal Procedure 6(e)
EOUSA first cites Rule 6(e) of the Federal Rules of Criminal Procedure as a justification
to withhold document 8 in full under Exemption 3.
Vaughn
Index at 4–5. Rule 6(e) prohibits,
with exceptions, the disclosure of “matter[s] occurring before [a] grand jury.” Fed. R. Crim. P.
6(e)(2). Rule 6(e) qualifies as a “statute” for purposes of Exemption 3 because it was affirmatively
enacted by Congress.
Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv.
, 656 F.2d
*16
856, 867–68 (D.C. Cir. 1981). But Rule 6(e) should not be read so literally “as to draw ‘a veil of
secrecy . . . over all matters occurring in the world that happen to be investigated by a grand
jury.’”
Senate of P.R. v. U.S. Dep’t of Justice
,
The first page of document 8 appears to be the first page of an incomplete letter. However, even that first page discusses “the strategy or direction” of the grand jury’s investigation into plaintiff. See id. For that reason, the first page of document 8 was properly withheld in full. The other pages of document 8 appear to be letters sent among the prosecution team, or between counsel for the government and counsel for plaintiff. Those letters were sent well after plaintiff’s indictment, and do not reflect any grand jury material protected by Rule 6(e). Those letters, therefore, should not have been withheld in full. The Court therefore next considers whether those documents are protected under Exemption 5.
B. Exemption 5 – Work-Product Privilege
Exemption 5 permits agencies to withhold “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);
see also U.S. Dep’t of Interior v. Klamath Water Users Protective
Ass’n
,
The attorney work-product privilege protects materials that reflect the “mental processes
of the attorney,”
Klamath
,
“The deliberative process privilege rests on the obvious realization that officials will not
communicate candidly among themselves if each remark is a potential item of discovery,” and its
purpose “is to enhance ‘the quality of agency decisions’ by protecting open and frank discussion
among those who make them within the Government.”
Klamath
,
EOUSA contends that one sentence on one page of both documents 6 and 8 – the “P.S.” to a letter that is otherwise being disclosed – is exempt from disclosure under Exemption 5. EOUSA claims that exemption 5 protects the “P.S.” line of page 2 of document 8, and an identical redaction of a copy of that letter at page 3 of document 6. Those identical letters request that someone on the prosecution team take a particular action that relates to a local law enforcement official. “The information contains the U.S. Attorney’s opinion, theory of the case, facts, assessments of facts, impression of the witnesses, the strength of various evidence and problem areas in the case, and issues upon which the attorney could present the case.” Vaughn Index at 4, 6. But the proposed redaction contains none of that protected information – it merely contains a request that the recipients of the letter pass the information it contains to someone else. And the government has not proposed that the rest of the same letter, which details the government’s plans to review specific evidence, is protected under the work-product privilege.
The Court finds that the proposed redacted P.S. line is not protected under the work-product or deliberative process privileges. The request does not reflect the mental processes of the attorney, as the work-product privilege would require, nor does it reflect internal agency decision- making. Therefore, the only portion of this sentence that may be withheld is the identity of the local law enforcement officer named at the end of the sentence under Exemption 7(C). See Lesar v. U.S. Dep’t of Justice , 636 F.2d 472, 487 (D.C. Cir. 1980) (finding “legitimate interest” in *19 preserving the identities of government officials where disclosure could “subject them to annoyance or harassment in either their official or private lives”).
As to the other proposed redactions on other pages of documents 6 and 8, and in all other respects, though, the Court agrees with EOUSA that any other redactions of documents 6 and 8 were proper.
CONCLUSION In sum, the Court agrees with the government that documents 1 and 3 were properly withheld in full. As to documents 6 and 8, the Court finds that the P.S. line of the letter described above should not be redacted, except to remove the name of a local government official.
The Court otherwise finds that the redactions and withholdings in those documents are proper. For the reasons explained above, the government’s motion for summary judgment will be granted as conceded, the remaining portions of documents 6 and 8 should be released to the plaintiff by January 4, 2016, and the Court otherwise will enter judgment in favor of defendants.
A separate order will issue.
AMY BERMAN JACKSON United States District Judge DATE: November 30, 2015