Bagwell v. DOJ, No. 15-0531, 2018 WL 1440177 (D.D.C. Mar. 22, 2018) (Cooper, J.)

Bagwell v. DOJ, No. 15-0531, 2018 WL 1440177 (D.D.C. Mar. 22, 2018) (Cooper, J.)

Re: Request for records concerning investigations into allegations of child sexual abuse on Pennsylvania State University's campus

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "The Court finds that that the Department's search efforts were inadequate because the search term[] used[, "'Pennsylvania State University,'"] [was] facially under-inclusive and thereby not reasonably calculated to uncover all responsive materials."
   
• Procedural Requirements, Consultations and Referrals:  The court holds that "[a]ny claim as to [the] documents [at issue in requests which were completed] is . . . moot, since [plaintiff] has either received his requested records or was in a position to challenge the basis for their withholding."  However, the court finds that, "[b]ecause there is no indication in the record that the Department of Education has ever responded to [plaintiff] concerning the referred records, those records have been improperly withheld and the Court will grant [plaintiff's] motion for summary judgment on this point."  "The Department of Justice will be required to either produce or explain the withholding of those records referred to the Department of Education."
   
• Exemption 7(A):  The court holds that "[defendant's] declaration certainly establishes the ongoing nature of the criminal proceeding."  "But it fails to explain how the disclosure of any of these documents would interfere with this ongoing proceeding."
   
• Exemption 5, Attorney Work-Product:  The court holds that "the Department has adequately justified that the documents were prepared in reasonable anticipation of litigation."  "[T]he documents were created by attorneys during a law enforcement investigation into allegations of specific illegal activity (child sex abuse and concealing such abuse) by specific people[.]"  The court analyzes the records withheld under this exemption and finds that most of them were properly withheld, but that "the Department [should] submit two representative samples . . . for in camera review."