Bartko v. DOJ, No. 17-781, 2018 WL 4608239 (D.D.C. Sept. 25, 2018) (Boasberg, J.)

Bartko v. DOJ, No. 17-781, 2018 WL 4608239 (D.D.C. Sept. 25, 2018) (Boasberg, J.)

Re:  Requests for records concerning alleged prosecutorial misconduct associated with plaintiff's conviction

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

• Litigation Considerations, Adequacy of Search:  The court finds that "the agency has finally explained the discrepancy" between the number of pages cited in its initial determination letter and the number cited in its appeal determination letter.  Additionally, "[t]o the extent [plaintiff] argues more generally that EOUSA has responsive records it has refused to produce, he offers 'purely speculative claims about the existence . . . of other documents' that cannot rebut the Government's sound explanation of the number of responsive records it has processed."
   
• Exemption 5, Attorney-Client Privilege:  "The Court . . . grants summary judgment to EOUSA as to its decision to withhold ["an email chain in which the U.S. Attorney’s Office for the Eastern District of North Carolina asked for and received legal advice from the agency"]."
   
• Exemption 5, Deliberative Process Privilege:  "The Court concludes that EOUSA has properly invoked the privilege as to certain documents but not as to others."  First, "[t]he Court . . . rejects [plaintiff's] argument that the misconduct exception erases the privilege here."  The court explains that "[w]hile applying the privilege to shield records that directly reflect government misconduct is improper, applying it to protect the deliberations of investigative bodies like OPR in their consideration of how to respond to past governmental misconduct is fully consonant with the policies undergirding the privilege."  However, the court also finds that a certain "document may do 'nothing more than explain an existing policy' and therefore 'cannot be considered deliberative.'"  Also, "the Court finds that the judicial opinions and other public filings are not privileged."  The court rejects "[t]he agency['s] assert[ion] that those records are privileged because they 'indicate what information the attorneys considered and what they determined was important to the OPR investigation[]'" and finds that "[i]ts argument may prove too much."
   
• Exemption 5, Attorney Work-Product Privilege:  "[T]he Court rejects EOUSA's argument that it properly withheld records under the work-product-privilege prong of Exemption 5."  The court finds that "EOUSA's justifications for withholding records on attorney-work-product-privilege grounds all fall short for one obvious reason: none of them explains in what manner the records were 'prepared or obtained because of the prospect of litigation.'"
   
• Exemptions 6 & 7(C):  Regarding the Exemption 7 threshold, the court holds that "[p]erhaps EOUSA can make a particularized showing as to why the responsive records are law-enforcement records, but it has not come close to making that showing so far."  Additionally, the court finds that, "for the moment[,] . . . EOUSA has not shown that it properly withheld the full contents of all responsive records under Exemption 6."  "It merely states that Exemption 6 is 'asserted to protect information about what materials OPR considered during its investigation, on the grounds that disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy.'"  "EOUSA does not explain the particular privacy interests at stake in each document nor why any invasion of those interests would be unwarranted."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "In light of the brief and conclusory nature of the Government's assertions, the Court concludes, subject to one exception, that EOUSA has not shown that the documents it otherwise properly withheld under Exemption 5 contain no reasonably segregable information."  The exception is a record that "[t]he Court found . . . properly withheld under the attorney-client privilege."
   
• Litigation Considerations:  The court holds that "there seems to be no dispute that Plaintiff seeks to maintain two actions in the same court, against the same defendant, at the same time."  Additionally, "[b]oth seek review of the same FOIA request and the same underlying records."  "Because [plaintiff] could have raised the arguments he now offers – and, in many cases, did in fact raise those arguments – the Court's final judgment carries res judicata effects as to the claims implicating the same cause of action."
   
• Litigation Considerations, Exhaustion of administrative Remedies:  "The Court concludes that, in light of the actions [plaintiff] took after it dismissed his claim, applying the exhaustion doctrine to preclude review would serve neither the purposes of exhaustion nor those of FOIA."  The court notes that "[plaintiff] would not be able to appeal administratively while any of his FOIA claims remained pending in court, even if the particular claim on which he seeks to appeal was dismissed."  "That kind of one-strike-and-you're-out approach is inconsistent with FOIA's goal of opening agency action to the light of public scrutiny."