Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________
)
ROYCE CORLEY, )
)
Plaintiff, )
) v. ) Civil Action No. 14-2157 (EGS)
)
JEFF SESSIONS, [1] et al ., )
)
Defendants. )
________________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiff, appearing pro se , sues under the Freedom of Information Act (“FOIA”) to compel “the production of agency records concerning [himself] and Sex Trafficking prosecutions,” maintained by the Federal Bureau of Investigation and the Executive Office for United States Attorneys (“EOUSA”). Compl. ¶ 1. In March 2016, the Court granted partial summary judgment to the Department of Justice (“DOJ”), leaving unresolved the question of segregability with respect to EOUSA’s records. [2] Mem. Op. and Order [Dkt. # 29]. Pending before the Court is Defendants’ Renewed Motion for Summary Judgment [Dkt. # 35]. Plaintiff has filed an Opposition and Cross-Motion for Partial Summary Judgment and Leave to Take Discovery [Dkt. ## 37, 38]. Based mostly on its independent examination of EOUSA’s *2 supplemental Vaughn index, the Court finds that (1) EOUSA’s vague descriptions of five withheld documents preclude a grant of summary judgment as to those records, (2) EOUSA has released all other reasonably segregable records, and (3) plaintiff’s ground for summary judgment is moot, and discovery is unnecessary. Hence, for the reasons explained more fully below, defendant’s motion will be granted in part and denied in part, and plaintiff’s motion will be denied.
1. Defendant’s Motion for Summary Judgment
EOUSA released 151 pages to plaintiff, 58 of which contained redacted material, and it withheld 265 pages completely. Supp. Decl. of Princina Stone ¶ 8 [Dkt. # 35-1]. The Court could not conclude from EOUSA’s initial declaration and index that all reasonably segregable records were released and thus denied summary judgment in part. See Mem. Op. at 24-25. In the pending motion, defendant asserts that EOUSA’s supplemental declaration and Vaughn index [Dkt. # 32-1] support summary judgment on the remaining segregability question. The Court agrees as to all but five documents withheld completely as attorney work-product.
EOUSA’s declarant “performed a segregability review of all 265 pages that were withheld in full and identified on the Supplemental Vaughn Index [by] Bates Numbers[.]” Supp. Stone Decl. ¶ 12 (listing pages). The withheld material “include[s], but is not limited to, witness statements, prosecuting attorney’s legal research, legal theories, hand-written notes, draft pleadings, [and] written communications among law enforcement personnel, attorneys within the District Attorney’s Office New York County and USAO/SDNY in preparation for the criminal prosecution of plaintiff.” Id . ¶ 14. The withholdings are pursuant to FOIA exemptions 3, 5, *3 7(C), and 7(D), id . ¶ 13, which the Court has already found to be proper justifications for withholding the same type of information. [3] See Mem. Op. at 21-24.
A. Third-Party Records
Plaintiff counters that “EOUSA should release . . . non-exempt portions of [certain Bates- numbered] records they seek to withhold based on privacy concerns since the identity of the speaker was already redacted[.]” Opp’n at 6-7 [Dkt. # 37] (listing Bates 00030-00038; 00175- 00184; 00185; 00186-00188, 00211-00215; 00189-00190; 00210; 00216-00223; 00229-00237; 00311). But the Court has carefully reviewed the supplemental index and finds that it adequately describes the information contained in the pages plaintiff has listed and explains why such information is fully protected by the claimed exemption(s). What plaintiff fails to acknowledge is that the privacy exemption EOUSA applied to the third-party information was invoked in conjunction with other exemptions that covered the remaining information—namely, exemption 3 (pursuant to the Child Victim and Child Witnesses’ Rights Statute); exemption 5 (attorney work-product); and exemption 7(D) (confidential source information). See Mem. Op. at 11-13, 21-24. Moreover, exemption 7(C) alone protects the withheld “photo array” of third- party individuals, Bates Numbers 00216-00223, and records “belonging to” third-party individuals, Bates Numbers 00229-00237, and 00311. See Mem. Op. at 14-18, 22. And the Court has already determined that plaintiff has shown no overriding public interest to compel disclosure of the otherwise exempt information. See id. at 16-17.
An agency may withhold complete records where “the exempt portions are ‘inextricably
intertwined with [non]exempt portions,”
Johnson v. Exec. Office for U.S. Attorneys
, 310 F.3d
*4
771, 776 (D.C. Cir. 2002), and “the excision of exempt information would impose significant
costs on the agency and produce an edited document with little informational value,”
Mays v.
Drug Enf't Admin
.,
B. Attorney Work-Product
FOIA Exemption 5 applies to “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). Withholdings are restricted to “those documents, and only those
documents, normally privileged in the civil discovery context,” such as attorney work-product,
deliberative process material, and attorney-client communications.
NLRB v. Sears, Roebuck &
Co.
,
EOUSA has invoked the attorney work-product privilege (in a few instances, in
conjunction with the deliberative process privilege). EOUSA’s declarant states correctly that
“[t]here is no requirement to segregate records that are protected under the attorney-work
product privilege of Exemption 5[,]” Supp. Stone Decl. ¶ 15, which the supplemental index reveals to be a sizable portion of the withheld material.
See Judicial Watch, Inc. v. Dep’t
of Justice
,
in order for the Government to discharge its evidentiary burden [under FOIA Exemption 5], it must (1) provide a description of the nature of and contents of the withheld document, (2) identify the document’s author or origin, (3) note the circumstances that surround the document’s creation, and (4) provide some indication of the type of litigation for which the document’s use is at least foreseeable.
Ellis
,
[w]hen considering whether a document is prepared “in anticipation of litigation,” [the D.C. Circuit] employs a “because of” test, inquiring “whether, in light of the nature of the document and the factual situation in the particular *6 case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” . . . Where a document would have been created “in substantially similar form” regardless of the litigation, work product protection is not available.
Boehringer Ingelheim Pharm., Inc
.,
Plaintiff counters that some of the records claimed as attorney work-product “are actually
investigative records which EOUSA cloaked with privilege simply because an attorney used it
for reference.” Opp’n at 8 (citing Bates Nos. 00061, 00197, 00204). Indeed, the Court cannot
find from the supplemental
Vaughn
index’s opaquely worded descriptions of the District
Attorney’s Office of New York County – HTAU Forensics (Bates Nos. 00061-00062); APS DA
Datasheet (Bates Nos. 00197-00203); and the New York City Police Department Omniform
System-Arrests (Bates Nos. 00204-00207) that those documents satisfy the D.C. Circuit’s
“because of test” to warrant full protection as attorney work-product, and EOUSA’s declaration
provides no clarifying explanations.
[4]
Simply put, the Court has no idea what information is
contained in those documents and how it qualifies as attorney work-product. In addition,
EOUSA has not identified the origin or author of the Application for Arrest Warrants (Bates
Nos. 00191-00192) and the Sex Crimes Prosecution Case Report (Bates Nos. 00193-00196),
thereby rendering the Court unable to assess whether either document satisfies the “inter-agency
or intra-agency” threshold requirement of exemption 5 and qualifies as attorney work-product.
[5]
*7
See Dep’t of Interior v. Klamath Water Users Protective Ass'n
,
In the supplemental index’s justification column for each of the foregoing documents,
EOUSA states: “Attorney Work Product – the privilege is intend to protect documents and other
memoranda prepared by an attorney in contemplation of litigation. The information was
prepared by law enforcement to be used by the prosecution, both of whom shared a common
interest in bringing plaintiff to trial for engaging the crime of sex trafficking of children.”
Index at 12, 18, 19, 20. But that language “simply parrots elements of the work product
doctrine,”
Judicial Watch, Inc. v. U.S. Dep't of Homeland Sec
.,
2. Plaintiff’s Motion for Summary Judgment and for Leave to Take Discovery
Plaintiff’s Cross-Motion for Summary Judgment is directed at DOJ’s Justice
Management Division and its alleged failure essentially to process the FOIA request in a timely
manner.
See
Mot. at 9 [Dkt. # 38]. But any challenge to the agency’s processing of the request
is rendered moot by its searches and subsequent release of responsive records. For “once all the
documents are released to the requesting party, there no longer is any case or controversy,” at
least as to those documents.
Bayala v. United States Dep't of Homeland Sec., Office of Gen.
Counsel,
Plaintiff’s motion to take discovery is premised on his speculative assertion of bad faith, supported only by his self-serving statements. See Mot. at 10. Plaintiff does not identify what information he needs beyond the evidence that is already in the record. Not only has plaintiff adequately refuted defendant’s evidence but he has raised questions about some of the withholdings that the Court has found in part to be worthy of explanation. Therefore, plaintiff’s motion for leave to take discovery will again be denied. Mar. 30, 2016 Mem. Op. at 10-11 (explaining that “discovery in FOIA cases ‘is rare’ and generally unnecessary when, as found here, the agency has submitted detailed declarations to permit a proper examination of its withholdings by both the Court and the plaintiff”) (citation omitted)); see also id . at 10 (concluding that plaintiff “has not come forward with any evidence . . . to call EOUSA’s [presumed] good faith into doubt”).
For the foregoing reasons, it is
ORDERED that the March 30, 2017 stay is lifted, and Plaintiff’s Cross-Motion for Partial Summary Judgment and Leave to Take Discovery, ECF No. 38, is DENIED ; it is further
ORDERED that Defendant’s Renewed Motion for Summary Judgment, ECF No. 35, is GRANTED in part and DENIED in part; and it is further
ORDERED that by December 29 , , Defendant shall supplement the record with regard to Bates Numbers 00061-00062; 00191-00192; 00193-00196; 00197-00203, and 00204- 00207, and move again for dispositive relief.
SIGNED: EMMET G. SULLIVAN UNITED STATES DISTRICT JUDGE DATE: November 16, 2017
Notes
[1] By substitution pursuant to Fed. R. Civ. P. 25.
[2] Although plaintiff has named individual defendants,
see
case caption, the Department of
Justice, as the parent agency of EOUSA and the FBI, is the proper defendant in this FOIA case.
Therefore, the complaint against the individual defendants is dismissed and DOJ is substituted.
See Martinez v. Bureau of Prisons
,
[3] EOUSA also invoked FOIA exemption 6 but, as previously noted, that exemption need not
be considered separately because the same information was withheld from law enforcement
records under exemption 7(C). Mar. 30, 2016 Mem. Op. at 14 (quoting
Roth v. U.S. Dep’t of
Justice
,
[4] A document described as “New York City Police Department Omniform System - Arrest” is also listed as withheld in part (Bates Nos. 00022-00024), which casts doubt on EOUSA’s justification for withholding the similarly named document (Bates Nos. 00204-00207) in full. In supplementing the record, defendant shall address this discrepancy and explain what appears to be inconsistent treatment of the same document or type of document.
[5] Plaintiff contends that “EOUSA asserts privileges for state prosecutors without providing any declarations from state prosecutors seeking the privilege.” Cross-Mot. at 8. But the right to