Boyd v. EOUSA, No. 13-1304, 2015 WL 1507839 (D.D.C. Mar. 31, 2015) (Jackson. J.)

Boyd v. EOUSA, No. 13-1304, 2015 WL 1507839 (D.D.C. Mar. 31, 2015) (Jackson. J.)

Re: Requests for records concerning plaintiff and for records concerning third party

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

• Litigation Considerations, Adequacy of Search:  "With respect to the portion of the . . . request that sought records related to plaintiff, the Court finds that EOUSA conducted an adequate search for responsive records."  "The agency began its search by forwarding the FOIA request to the FOIA contact for the U.S. Attorney's Office for the Eastern District of Missouri."  "The FOIA contact then searched the 'LIONS' system, which is 'the computer system used by United States Attorneys offices to track cases and to retrieve files pertaining to cases and investigations.'"  "This system permits a user to retrieve information using a person's name, an internal U.S. Attorney's Office administrative number, or a case number."  "In this case, the FOIA contact searched the LIONS system using plaintiff's name."  "In addition to searching this system, the FOIA contact reached out to 'the appropriate Assistant United States Attorneys in the Criminal Division' by email 'to ascertain whether they had any responsive records.'"  "The agency asserts that '[t]here are no other records systems or locations within the Eastern District of Missouri in which other files pertaining to plaintiff's criminal case, were maintained.'"
   
• Exemptions 6 and 7(C):  Regarding EOUSA, first, "the Court concludes that EOUSA properly applied Exemption 7(C) to categorically withhold information responsive to plaintiff's request for information about [a third party]."  The court finds that "plaintiff has not identified a public interest that outweighs the privacy interests at stake here, and EOUSA's withholdings under 7(C) were appropriate."  "[T]he Court finds that none of the 'new' evidence plaintiff cites is material, and so it does not alter the conclusion of the D.C. Circuit [in a similar FOIA case] that, on this record, a reasonable person would not 'conclude that the ... allegations of government malfeasance might be true.'"  "The Court is therefore bound by the D.C. Circuit's finding that plaintiff has not articulated a public interest to be balanced against the privacy interests at issue here."  Second, the court finds that EOUSA correctly categorically withheld "information about [a] former St. Louis police officer."  In response to plaintiff's argument, the court finds that "[e]ven if [the former officer's] conviction might diminish his privacy interest in this case, it does not eliminate it entirely."  The court finds that "plaintiff must still establish the existence of a countervailing public interest in disclosure by pointing to evidence that would cause a reasonable person to infer that his allegation that the government was 'complicit in [the officer's] wrongdoing.'"  The court concludes that "[i]n the end, plaintiff has pointed to nothing that took place in connection with his case that would warrant opening the records of the investigation into [the former officer's] crimes, which occurred nearly ten years later, to him."  Third, the court finds that EOUSA correctly "withheld the names and other identifying information of third parties, witness, and law enforcement personnel."  The court finds that plaintiff points to no "public interest in disclosure, [and] he offers nothing more than his own speculation to support that claim."

Regarding Treasury, the court holds that the use of Exemption 6 and 7(C) is not justified.  The court finds that "Treasury asserts that the information withheld was located in 'files similar to personnel and medical files,' . . . but it has provided no description of the records that would permit the Court to assess this legal conclusion."  Moreover, "the Court cannot determine whether the agency has satisfied FOIA's segregability requirement without a more detailed description of these records."  Similarly, regarding the use of Exemption 7(C), the court finds that "Treasury has, again, entirely failed to describe this set of records, beyond the conclusory statement that they were 'law enforcement records.'"

Regarding IRS, "in the absence of any objection by plaintiff, the Court finds that the IRS's withholdings are justified."  The court explains that "the redacted record – a letter from the Criminal Investigation office – appears to be a record compiled for a law enforcement purpose" and "IRS has identified a strong privacy interest in not being associated with alleged criminal activity."

Regarding USMS, "[i]n light of the thoroughly detailed affidavit provided by the USMS, the significant privacy interests at stake, and plaintiff's failure to object, the Court finds that the USMS's reliance on Exemption 7(C) is justified."  The court specifically points to USMS's statement "that there is no public interest in the disclosure of information about law enforcement personnel with whom plaintiff may have had contact while in USMS custody, and that the release of this information 'could subject these individuals to unwarranted public attention, harassment, and annoyance ... and could possibly pose a danger to their life or physical safety.'"

• Exemption 3:  Regarding EOUSA, the court holds that EOUSA's reliance on Exemption 3 is not fully justified.  The court relates that "EOUSA invokes Exemption 3 in conjunction with a provision of the Ethics in Government Act, 5 U.S.C. app. 4 § 107(a)(2), and Rule 6(e) of the Federal Rules of Criminal Procedure."  The court finds that while "EOUSA cites the provision of the Ethics in Government Act as justification to withhold . . . '[d]ocuments titled 'Conflict of Interest Certification,''" "the cited provision says nothing about 'conflict of interest forms'; rather, it states that, when a government ethics office requires its employees to file confidential financial disclosure reports, those reports 'shall not be disclosed to the public.'"  "EOUSA has not explained why document 3 is the type of record that is covered by this provision, nor has it described the record in enough detail to permit the Court to grant judgment to EOUSA on this withholding."  However, "the Court finds that EOUSA properly withheld" "transcripts from grand jury proceedings and testimony" because this "is precisely the type of information that the provision is designed to protect."  "[H]owever," regarding documents "described as a '[s]eries of communication letters between attorneys handling the case' that includes discussion of 'items relating to the Grand Jury, and case strategy,'" the court finds that "[t]his description is simply not detailed enough for the Court to determine whether disclosure of document 8 'would tend to reveal some secret aspect of the grand jury's investigation.'"

Regarding Treasury, the court holds that Exemption 3 is not justified.  The court relates that "Treasury invoked FOIA Exemption 3, . . . in conjunction with the Bank Secrecy Act, 31 U.S.C. § 5311, et seq."  "Section 5319 of the Bank Secrecy Act exempts records collected under that act from disclosure under FOIA."  "Treasury states that it applied Exemption 3 in conjunction with the Bank Secrecy Act to withhold 'references to information collected pursuant to the Bank Secrecy Act.'"  The court finds that "Treasury's description of this withholding is not sufficient."

• Exemption 5, Deliberative Process Privilege, Attorney Work-Product:  The court finds that EOUSA's reliance on Exemption 5 is not fully justified.  The court first finds that "EOUSA has not explained how 'copies of interviews of third parties' constitute 'inter-agency or intra-agency memorandums or letters,'" "has not explained why such a record would reflect the '"mental processes of the attorney,"'" and "has not stated that this record preceded any particular decision, or explained how it '"reflects the give-and-take of the consultative process."'"  Regarding a "'Case Initiation Form'" "[t]he Court finds that EOUSA's reliance on the attorney work-product privilege is justified."  "EOUSA's description of the record sufficiently indicates that it qualifies as an 'inter-agency or intra-agency memorandum,' . . . and that it was prepared 'in the course of an investigation that was undertaken with litigation in mind.'"  "And, second, an attorney-prepared 'case initiation form' would necessarily reflect the '"mental processes of the attorney."'"  Regarding "'[c]ommunication sent among [v]arious individuals involved in the case,'" "EOUSA provides no other description of this record, and without further information, the Court cannot conclude that its reliance on Exemption 5 is justified."  Regarding a "'[s]eries of communication letters between attorneys handling the case,'" "EOUSA's description is too general for the Court to conclude that it has carried its burden to establish that Exemption 5 applies."
   
• Procedural Requirements, Searching for Responsive Records:  "[I]n light of ATF's unrebutted assertion that it had already processed all of the records responsive to plaintiff's FOIA request in connection with plaintiff's previous dozen requests and a five-year-long lawsuit, . . . the Court finds that ATF's response to plaintiff's latest FOIA request was justified."  The court rejects plaintiff's contention that "'post-judgment events has [sic] given rise to new claims, because new facts have unfolded that where [sic] not in existence during the original action and could not have been litigated in the prior actions.'"
   
• Exemption 7(E):  The court finds that "Treasury has . . . failed to meet its obligation to provide "'a relatively detailed justification'" for its withholding."  The court relates that "Treasury states that it has invoked Exemption 7(E) 'to protect from disclosure databases used in enforcement investigations.'"  The court finds that "[i]t is not apparent, however, how 'databases' constitute responsive records under FOIA, as opposed to the systems through which a search for responsive records might be conducted."