Parker v. DOJ, No. 10-2068, 2014 WL 4723778 (D.D.C. Sept. 23, 2014) (Jackson, J.)

Parker v. DOJ, No. 10-2068, 2014 WL 4723778 (D.D.C. Sept. 23, 2014) (Jackson, J.)

Re: Request for records concerning former AUSA

Disposition: Remanding case so that defendant can take further action consistent with opinion

• Litigation Considerations, Adequacy of Search:  Regarding one search, the court holds that "defendant has 'fail[ed] to explain' why the offices it chose to search 'were the reasonably likely locations of the records sought.'"  With respect to another search, the court similarly finds that defendant's "declaration . . . also does not describe an adequate search because it does not explain the file systems of the Personnel Staff office, nor does it clarify the 'rationale for searching certain locations and not others.'"  Additionally, the court finds a third declaration "does not describe a search that was reasonably calculated to uncover responsive documents [because it] does not explain what records are kept at [the Eastern District of Arkansas] or how they are organized, nor does she describe performing any searches whatsoever."  However, the court does find one search adequate.  The court states that defendant "describes an adequate search because it sets forth a comprehensive description of how the office maintains records, which search terms were used, and how the search was conducted."  The court also finds that, contrary to plaintiff's assertion, "'[t]here is no requirement that an agency search every record system.'"
   
• Exemption 5, Deliberative Process Privilege:  The court holds that certain records are protected by "the deliberative process privilege because ''it reflects the give-and-take of the consultative process'' with respect to the AUSA [at issue]."  Regarding other records, the court finds that they are "protected by Exemption 5 because it reflects privileged attorney-client communication as well as defendant's deliberative process."  However, the court does find that the "the exempt portions of the files are reasonably segregable from the non-exempt portions."  Regarding a "'[o]ne-page, intra-agency document prepared and maintained by the then-Legal Counsel's Office summarizing evidence and factual aspects of the investigation ..., [and] analysis and thoughts respecting actions contemplated to be taken regarding [the former AUSA's] 'unauthorized practice of law,''" the court finds that "this record is exempt from disclosure" because "the document reflects privileged attorney-client communications and ''the give-and-take of the consultative process.''"
   
• Exemption 5, Attorney Work-Product Privilege:  The court holds that certain records "fall under Exemption 5 because their contents are protected by the attorney-client privilege."  The court explains that "[b]oth files reflect confidential communications between defendant and its counsel with respect to [the former AUSA's] unauthorized practice of law."
   
• Exemption 6:  The court finds that certain records are protected by Exemption 6 because "[t]his exemption protects information related to a person's employment status and employment history, which is the type of information reflected in these records."  Additionally, "the Court finds that the balance [of the private and public interests] favors privacy."  Regarding other records, the court finds that "Exemption 6 does not apply to ['Legal Counsel Office communication devices'] because they are not 'personnel,' 'medical,' or 'similar' files."  "The Court finds that their disclosure would not 'constitute a clearly unwarranted invasion of personal privacy' and that Exemption 6 does not apply."  Regarding "a two-page letter with a six-page attachment from the EOUSA Senior Counsel to the Director to [the] former AUSA [at issue] that 'detail[s] a proposed adverse employment action to be taken' against [the former AUSA]," the court finds that it "is protected from disclosure in its entirety by FOIA Exemption 6" because, "[a]lthough there is a valid public interest in knowing how defendant handled its investigation of [the] former AUSA['s] . . . unlicensed practice of law, the privacy interest at stake with this particular record outweighs that public interest because this record details a specific proposed adverse employment action against [the former AUSA] that sheds little light on defendant's handling of the investigation in this case."