Bernegger v. EOUSA, No. 17-563, 2018 WL 4539682 (D.D.C. Sept. 20, 2018) (Moss, J.)

Bernegger v. EOUSA, No. 17-563, 2018 WL 4539682 (D.D.C. Sept. 20, 2018) (Moss, J.)

Re:  Request for records seeking electronic communications related to the requester's case

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

• Procedural Requirements, Searching for Responsive Records & Responding to FOIA Requests:  "Plaintiff first argues that he is entitled to the release of 540 records that were not released, listed in EOUSA's Vaughn index, or otherwise identified as exempt from disclosure."  "Plaintiff apparently derives this number of 'missing' records by starting with the assertion in EOUSA's . . . letter, in which it asserted that . . . 'approximately 1,375 pages of potentially responsive records [had] been located.'"  "Plaintiff then subtracted from 1,375 the number of pages of records that EOUSA eventually released, identified in its Vaughn index, or identified as duplicates, and arrived at the conclusion that 540 'records' are 'missing.'"  The court finds that, "[n]eedless to say, an estimate does not create an entitlement to that number of pages of records."  "EOUSA was required to release or lawfully withhold only those records within the scope of plaintiff's request."  "The [c]ourt is convinced by the uncontroverted evidence that it did so and that the discrepancy between EOUSA's initial estimation and its ultimate response is not the product of bad faith and is not evidence that any of the requested records are 'missing.'"
   
• Litigation Considerations, Vaughn Index/Declaration:  The court finds that, "[i]n the FOIA context, a declarant 'satisfies the personal knowledge requirement in Rule [56(c)] if[,] in his declaration, [he] attests to his personal knowledge of the procedures used in handling [a FOIA] request and his familiarity with the documents in question.'"  "A FOIA declarant, moreover, 'may include statements in [his] declaration[ ] based on information [he] ha[s] obtained in the course of [his] official duties.'" 
   
• Litigation Considerations, Adequacy of Search:  The court notes that, "the U.S. Attorney's Office conducted a search for the records plaintiff sought and did not limit its search to records from 'his criminal case.'"  The court finds that, "the government engaged in a thorough search for responsive records."  "Finally, plaintiff challenges the adequacy of the search on the ground that EOUSA has not 'disclosed' 'the age of the computers' that were searched, and it is possible that the computers or hard drives were replaced in the time that passed between 2009 and the relevant searches."  The court states, "[t]hat may be true, but it does not call into question the adequacy of the search."  "Even if computers or hard drives were replaced, there is no reason to believe that the U.S. Attorney's Office kept the old computers or hard drives, and, indeed, [EOUSA] attested that [it] is 'not aware of any other locations . . . where any other records that might be responsive to plaintiff's requests are likely to be located.'"  "Like all FOIA requesters, plaintiff is 'entitled only to records that an agency has in fact chosen to create and retain.'"
   
• Exemptions 6 & 7(C):  "Relying on both Exemption 6 and Exemption 7(C), EOUSA has withheld 'names, address[es,] and telephone numbers of AUSAs, legal assistants, law enforcement officers, and other personally identifiable information related to witness or nonparty individuals.'"  "According to EOUSA, the individuals whose personal information was withheld have a strong privacy interest here because plaintiff has engaged in a campaign of 'harassment of individuals involved in his criminal case and [he has a] penchant ... for filing frivolous civil suits' against those individuals."  "In response, plaintiff argues that neither exemption applies because any privacy interest is outweighed by the public interest in exposing 'corruption or malfeasance' on the part of those public employees."  The court finds that, "[t]he information at issue here involves cognizable privacy interests."  "EOUSA has shown that there is reason to believe that plaintiff will 'harass[ ]' or 'retaliat[e] against those individuals identified.'"  "The existence of a privacy interest, standing alone, however, is insufficient to support EOUSA's reliance on Exemptions 6 and 7(C)."  "Plaintiff does not take issue with the premise that the redacted information implicates personal privacy, but he argues that any such interest is outweighed by the public interest in exposing government corruption."  "In the abstract, plaintiff is right."  "But, as applied to the facts of this case, he is not."  "As the Supreme Court has emphasized, it is not enough for a FOIA requester merely to raise accusations of misconduct; a FOIA requester's 'bare suspicion' of government misconduct is insufficient to outweigh a 'cognizable' privacy interest."  "Plaintiff merely rehashes the 'venomous and unsubstantiated allegations of misconduct directed at prosecutors, judges, court staff, witnesses, and others' that other courts have previously considered and rejected."  "Plaintiff also argues that Exemptions 6 and 7(C) do not apply because the personal information at issue is already known to him."  "But agencies releasing records pursuant to FOIA requests must be mindful that '[d]ocuments released in a FOIA action must be made available to the public as a whole.'"  "In releasing private information, 'an agency must operate on the assumption . . . that the recipient will further distribute the information, or that others will seek the same information and reasonably expect similar treatment by the FOIA office.'"  Finally, "plaintiff argues that 'government employees . . . have no right whatsoever to privacy when conducting gov[ernment] business on gov[ernment] computers.'"  "This argument hardly merits discussion."  "Suffice it to say, the privacy interest of federal employees 'includes the right to control information related to themselves and to avoid disclosures that . . . conceivably [could] subject them to annoyance or harassment in either their official or private lives.'"
   
• Exemption 5, Deliberative Process Privilege:  "In responding to plaintiff's FOIA request, EOUSA withheld documents and portions of documents that reflect 'the back and forth pre-decisional communications among' attorneys and legal assistants from the U.S. Attorney's Office, 'FBI agents, and other state and federal [agents] involved in some way with the plaintiff's litigation,' as well as 'draft unsigned and undated pleadings prepared by the government attorney during plaintiff's criminal trial.'"  "According to plaintiff, 'grave gov[ernment] misconduct in and around his trial' precludes EOUSA from relying on the privilege.'"  The court notes that, "[t]he question whether Exemption 5 incorporates a 'government misconduct' exception is unsettled in the D.C. Circuit."  The court finds that, "even assuming that a 'government misconduct' exception does apply, courts agree that a 'plaintiff must meet a high bar to properly invoke it.'"  "Given this high bar, the [c]ourt has no difficulty concluding that plaintiff's unsubstantiated—and previously rejected – accusations of government misconduct fall far short of triggering the exception."