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Gutman v. U.S. Department of Justice

January 7, 2003

ALBERTO GUTMAN, PLAINTIFF,
v.
U.S. DEPARTMENT OF JUSTICE, DEFENDANT.



Alberto Gutman* *Express Overnight Mail Register No. 50875-004 F.C.I. Miami Camp P.O. Box 779800 Miami, FL 33177 The pro se plaintiff Ausa Robert Leidenheimer, Jr. Judiciary Center Building 555 4th Street, N.W. Room 10-816 Washington, D.C. 20530 Counsel for the defendant

The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge.

Document No.: 11

MEMORANDUM OPINION GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

The Freedom of Information Act ("FOIA"), as amended, 5 U.S.C. § 552, provides the public the right to access federal agency records, except when records are protected from public disclosure. The goal of achieving an informed citizenry through disclosure of agency records is counterpoised against other vital societal aims opposing disclosure. Nat'l Labor Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). Accordingly, this court weighs in the balance what the public needs to know and what the government need not disclose.

Alberto Gutman ("the plaintiff") brings this FOIA action against the Department of Justice ("the defendant"). After being convicted for conspiracy to commit Medicare fraud, the plaintiff submitted a FOIA request to the defendant seeking disclosure of all documents pertaining to the plaintiff, and specifically any documents that make the plaintiff the subject of a law-enforcement inquiry or investigation. The defendant now moves for summary judgment on all the requested records withheld or redacted pursuant to the privilege and confidentiality protections of FOIA Exemptions 5 and 7(C). Upon consideration of the parties' submissions, the relevant law and the record of this case, the court grants the defendant's motion for summary judgment.

II. BACKGROUND

The plaintiff is a former Florida State senator who pled guilty to conspiracy to commit Medicare fraud and was sentenced to a 60-month term of imprisonment. *fn1 Def.'s Mot. for Summ. J. ("Def.'s Mot.") at 1. While incarcerated, the plaintiff submitted a FOIA request to four of the defendant's divisions, including the Executive Office for United States Attorneys ("EOUSA") (collectively, "the divisions"). Compl. ¶ 2. The plaintiff requested copies of materials that either mention the plaintiff or subject him to government inquiry or investigation. Id.

The defendant's Office of Information and Privacy ("OIP") processed the plaintiff's FOIA request. Id. ¶ 4. OIP is responsible for searching for and reviewing records within the defendant's senior leadership divisions, which include the divisions to which the plaintiff submitted his FOIA request. Def.'s Mot. at 2. OIP searched for records and uncovered three documents, totaling eleven pages, relating to the plaintiff's FOIA request. Compl. ¶ 4. After reviewing the documents, OIP determined that because the documents originated in EOUSA, and in accordance with Department of Justice regulations, 28 C.F.R. § 16.4(c)(2), referral of the documents to EOUSA for processing was necessary. Def.'s Mot. Ex. B ¶ 6. After processing all three documents, EOUSA released in part, released in full, or withheld in full various pages of the three documents. Id. at 2, Ex. B.

The first document released by the defendant is a revised six-page memorandum dated January 9, 1997 that concerns the "un-recusal" of the United States Attorney's Office for the Southern District of Florida from the plaintiff's criminal investigation and prosecution. Id.; Pl.'s Opp'n to Def.'s Mot.. ("Pl.'s Opp'n") at 7. Pursuant to Exemption 5, the defendant withheld in part one page and withheld in full three pages of this document to protect its deliberative process. Def.'s Mot. at 2.

The second document comprises two pages and is an "urgent" report advising the Attorney General that the United States had appealed a magistrate judge's bond determination releasing the plaintiff. Id.; Pl.'s Opp'n at 5-8. Pursuant to Exemptions 5 and 7(C), the defendant withheld in part one page of this document. Id. Specifically, the defendant redacted certain portions pursuant to the attorney work-product privilege under Exemption 5. Def.'s Mot. at 3; Pl.'s Opp'n at 7-8. The defendant also redacted home telephone and pager numbers under Exemption 7 to protect the personal privacy of certain government attorneys. *fn2 Def.'s Mot. at 2-3; Pl.'s Opp'n at 5-6.

The third document is a three-page "urgent" report advising the Attorney General that the plaintiff was sentenced to 60 months in prison. Def.'s Mot. at 3; Pl.'s Opp'n at 5-6. The defendant redacted home telephone and pager numbers under Exemption 7(C) from one page of this document to protect the personal privacy of certain government attorneys. *fn3 Id.

On May 6, 2002, the plaintiff filed his complaint requesting that the court order the defendant to release the three documents in their entirety. Compl. at 1-3. Subsequently, on August 16, 2002, the defendant filed a motion for summary judgment. In his opposition, the plaintiff contends for the first time that the defendant failed to release three additional documents, namely: (1) a three-page memorandum dated December 24, 1996 from EOUSA to the Attorney General concerning the un-recusal of the United States Attorney's Office for the Southern District of Florida from the plaintiff's criminal investigation and prosecution ("first additional document"); (2) a one-page note from Associate Deputy Attorney General David Margolis ("second additional document"); and (3) the third page of the previously-mentioned January 1997 memorandum, reflecting Mr. Margolis' approval of the un-recusal on January 11, 1997 ("third additional document"). Pl.'s Opp'n Ex. A ¶ 4; Def.'s Reply Ex. 1 ¶ 14.

On October 28, 2002, the defendant filed its reply, noting that it had processed these three additional documents for withholding or release to the plaintiff and attaching them as exhibits thereto. Def.'s Reply Exs. 1, 3-4. With regard to the first additional document, as it did with the first document (i.e., the January 1997 memorandum), the defendant withheld part of one page and all of two pages of the first additional document pursuant to Exemption 5. Id. at 4-6. The defendant released the second additional document in full. Id. With regard to the third additional document, the defendant withheld it in part pursuant to Exemption 5. Id.

Because the defendant filed these additional documents with its reply, the court permitted the plaintiff to file a sur-reply in response to the additional documents but instructed the plaintiff to respond only to those new points raised in the defendant's reply brief. Order dated Nov. 13, 2002. The plaintiff filed a sur-reply on November 25, 2002. *fn4 He did not, however, address the additional documents. Instead, he expounded on previous arguments raised in his opposition. *fn5 Pl.'s Sur-reply 3-5.

The court now analyzes the legal arguments in favor of and opposing summary judgment. Specifically, the court addresses whether the defendant performed its search for the plaintiff's requested information in bad faith, whether the defendant appropriately claimed Exemption 5 deliberative-process and attorney work-product privileges to withhold certain information from the plaintiff, and whether the defendant ...


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