Reep v. DOJ, No. 16-1275, 2018 WL 1461902 (D.D.C. Mar. 22, 2018) (Lamberth, J.)

Reep v. DOJ, No. 16-1275, 2018 WL 1461902 (D.D.C. Mar. 22, 2018) (Lamberth, J.)

Re: Request for records concerning plaintiff, as well as records concerning two criminal cases

Disposition: Granting defendants' motion for dismissal; granting defendants' motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that, "[s]ince the plaintiff failed to file suit against the FBI, DEA, and EOUSA within the six-year window after he constructively exhausted his administrative remedies, the Court must dismiss the claims as to those defendants."  The court also finds that "Plaintiff's argument fails because the relevant factor is when the plaintiff has constructively exhausted his remedies, not when the administrative appeal has been adjudicated or when the agency last corresponds with the plaintiff."
   
• Litigation Considerations, Adequacy of Search:  "The Court finds that ATF met its burden to demonstrate that it conducted a reasonable search."  "ATF searched the systems that would contain the information sought by the plaintiff and came up with the same case file each time."  Responding to plaintiff's argument, the court finds that "'it is long settled that the failure of an agency to turn up one specific document in its search does not alone render a search inadequate.'"  "Here, ATF conducted a thorough search on three separate occasions."
   
• Exemption 3:  The court relates that "[plaintiff] appears to be arguing that ATF also improperly redacted the meeting date of the grand jury[.]"  "The Court finds no evidence in the ATF declaration, the Vaughn index, or anywhere else in the record that the date was redacted."  "But even if it had been, the Court finds the redaction proper."  "The D.C. Circuit has previously held that revealing the date and time that a grand jury meets is protected from disclosure by Rule 6(e) because it 'would tend to reveal the complexity and scope, focus and direction of the grand jury investigations.'"  "Accordingly, even if ATF had redacted those dates, it would be appropriate under FOIA Exemption 3."
   
• Exemption 5, Deliberative Process Privilege, Attorney Work-Product Privilege, Attorney-Client Privilege:  The court holds that "plaintiff does not appear to contest any withholding under this exemption."  "Even so, the Court finds that the two draft documents prepared by the AUSA and shared with ATF for review were properly withheld under the deliberative process privilege."  "The documents were 'predecisional' in that no final agency action had been taken and were deliberative in that they were shared as part of a consultative process."  "They were also properly withheld under attorney-client privilege and attorney work product privilege."  "The documents contained legal analysis by the AUSA, in this case counsel for ATF, and were prepared in anticipation of litigation."  "The Court also finds that the . . . draft legal filings were properly withheld under the attorney-client privilege."  "[Defendant's] declaration notes that the documents contained the legal advice of the AUSA handling the underlying criminal prosecution of the plaintiff and contained analysis of facts and law."
   
• Exemption 6 & 7(C):  "[T]he Court finds that the privacy interests of the third-parties, whose names were withheld from disclosure, outweigh any public interest that exists."  "ATF properly applied Exemptions 6 and 7(C)."  The court relates that "ATF withheld the names and other identifying information of federal law enforcement agents, non-law enforcement third parties, state and local law enforcement personnel, and information relating to criminal enforcement cases of non-law enforcement third parties."  The court agrees with ATF that "'disclosure might seriously prejudice their effectiveness in conducting investigations to which they are assigned and subject them to embarrassment and unwarranted harassment in the conduct of their official duties and personal affairs.'"  The court also notes that "plaintiff appears to be justifying disclosure based on a private, not a public, interest."  "Namely that the government failed to release to him exculpatory information which would be helpful in challenging his own conviction."
   
• Exemption 7(E):  "The Court concurs that ATF properly applied Exemption 7(E) to withhold the law enforcement codes found on TECS and NCIC computer file numbers."  The court finds that "[d]isclosing the codes would allow individuals to gain access to sensitive investigative information and/or alter or create false records."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "The Court finds that ATF properly released any 'reasonably segregable portion of the record.'"  "ATF's declaration indicates that each page of the responsive documents were reviewed to ensure that no additional information could be released."
   
• Procedural Requirements, Consultations and Referrals"  The court notes that plaintiff's claim here is unclear, but the court finds that, "even if he did intend to allege improper conduct by ATF, he has not provided evidence, nor has the Court found evidence, indicating that the referral led to improper withholding of records."