Off. of Fed. Pub. Def. v. DOJ, No. 23-02476, 2025 WL 1734803 (D.D.C. June 23, 2025) (Ali, J.)

Off. of Fed. Pub. Def. v. DOJ, No. 23-02476, 2025 WL 1734803 (D.D.C. June 23, 2025) (Ali, J.)

Re:  Request for five categories of records, including information about defendants’ security presence at plaintiff’s client’s trial and his transportation to the courthouse each day

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

• Exemption 7(E):  The court holds that “Defendants shall . . . disclose the withholdings made under exemption 7(E).”  The court relates that “Defendants assert that this exemption authorizes withholding any information related to ‘the security measures and the personnel needed for the movement of in-custody witnesses from [Bureau of Prisons] facilities to the courthouse and within the courthouse, and specific details about the timing of these movement[s].’”  “Defendants accordingly relied on the exemption to redact information about the number of deputies assigned to the trial and to the judges in the courthouse, as well as ‘the manner in which inmates were restrained during transport and within the courthouse.’”  “[Plaintiff] argues that the information it seeks does not involve techniques, procedures, or guidelines for any ‘law enforcement investigations or prosecutions.’” “Defendants do not respond to this argument at all.”  “An agency bears the burden to explain why its proposed withholdings are justified under FOIA, yet Defendants make no effort to explain how their withholdings fall within the textual limit of being techniques, procedures, or guidelines for law enforcement investigations or prosecutions.”  “[I]t is not clear that security measures at trial or in transportation to the courthouse are techniques, procedures, or guidelines for a law enforcement investigation or prosecution.”  “This is especially so given the Supreme Court’s caution that FOIA exemptions be ‘narrowly construed.’”
   
• Exemption 5, Deliberative Process Privilege & Foreseeable Harm & Other Considerations:  The court relates that “the parties dispute whether Defendants properly redacted four bullet points that give reasons for requesting the additional personnel and discuss:  (1) how witnesses would be transported and the number of personnel required; (2) the names of four in-custody witnesses and specific security concerns associated with their transportation; (3) gang threats received regarding in-custody witnesses; and (4) the necessary time for transportation and the required number of vehicles and deputies.”  “Defendants say that disclosing this information ‘would seriously impair [the Marshals Service’s] ability to foster internal discussions necessary for efficient and proper [Marshals Service] decision-making’ and ‘would provide insight on the internal and external factors that a district weighs in assessing whether to augment personnel for high threat trials and how many law enforcement officers are assigned to crucial aspects of high threat trials.’”  “[Plaintiff] does not dispute that the bullet points at issue were predecisional – the email appears to have been sent before the agency reached any final decision as to transportation and security measures.”  “[Plaintiff] argues, however, that the bullet points are not covered by the deliberative process privilege because they contain factual information.” The court finds that “Defendants have satisfied their burden in showing that an internal request for additional staffing such as this would rely on the author’s judgment about what facts are pertinent to the request.”  “Here, the selection of facts would rely on the author’s assessment of the security risks and what facts bear on the risks.”  “Those facts would be ‘inextricably intertwined’ with the deliberative analysis of the security measures and staffing recommended.”
  
  “Defendants have also shown it is reasonably foreseeable that disclosure would harm a protected interest.”  “As Defendants’ declaration describes, release of the internal email requesting additional personnel ‘would render [Marshals Service] employees more cautious and reluctant in their discussions with each other, which would ultimately impair the [Marshals Service’s] ability to foster internal discussions necessary for efficient and proper [Marshals Service] decision-making with respect to its operational activities related to judicial security.’”  “Defendants were accordingly authorized to redact the bullet points in the internal email under FOIA’s fifth exemption.”
   
• Litigation Considerations, Adequacy of Search:  The court relates that “[plaintiff] raises a concern for the first time in its reply brief that Defendants’ search may not have been adequate.”  “The concern appears to be based on fifteen additional pages of responsive emails Defendants identified while processing a separate FOIA request by [plaintiff’s client’s] codefendant, after [plaintiff] filed its cross motion for summary judgment.”  “The parties are directed to meet, confer, and file a joint status report by July 7, 2025, advising the Court whether there is any outstanding issue.”