The opinion of the court was delivered by: Amy Berman JACKSONUnited States District Judge
Plaintiff Dr. Lonnie Parker brings this action against defendant U.S. Department of Justice ("DOJ") alleging that DOJ violated the Freedom of Information Act ("FOIA") by improperly withholding agency records. The parties have filed cross-motions for summary judgment. [Dkt. # 7 and # 12]. For the reasons stated below, the Court will remand the matter back to the agency to reconsider the FOIA requests in light of this opinion and deny defendant's motion for summary judgment without prejudice and deny plaintiff's motion as moot.
Plaintiff seeks review of defendant's response to a FOIA request submitted to DOJ on April 26, 2010. Def.'s Statement of Material Facts ("Def.'s SMF") ¶ 1. [Dkt. # 7]. Plaintiff sought six categories of records all relating to former Assistant U.S. Attorney Lesa Gail Bridges Jackson and her unauthorized practice of law while working for DOJ as an Assistant U.S. Attorney ("AUSA"). Ex. A to Boseker Decl. [Dkt. # 7]. The request included the following six categories of documents:
(1) All agency records that document, discuss, or otherwise describe whether Lesa Gail Bridges Jackson was authorized to practice law, and/or a member of good standing of the Bar of the State of Arkansas, or any other state bar, at the time she was hired to work as a U.S. Attorney in 1989 . . . ;
(2) All agency records that document, discuss, or otherwise describe any annual or periodic certifications made by AUSA Jackson . . . asserting that she was an attorney in good standing and/or authorized to practice law . . . ;
(3) All agency records of any written communication between AUSA Jackson and the U.S. Attorney's Office that discuss whether she was a member of good standing of the Bar of the State of Arkansas, or authorized to practice law . . . ;
(4) All agency records of any investigations or agency review into allegations that AUSA Jackson was not authorized to practice law at the time she worked as a U.S. Attorney with the U.S. Attorney's Office, and/or had submitted false or misleading records pertaining to her bar status or authorization to practice law . . . ;
(5) All agency records that document, discuss, or otherwise describe any disciplinary action taken against AUSA Jackson . . . on the basis that she was not authorized to practice law, or had otherwise provided false information . . . [regarding her attorney status], or which otherwise discuss . . . the reasons that [she] is no longer an employee of the U.S. Attorney's Office at this time;
(6) All agency records that document, discuss or otherwise describe any remedial measures or additional policies implemented by the U.S. Attorney's office to prevent future circumstance where a U.S. Attorney could be hired or remain employed as a U.S. Attorney, notwithstanding the fact that they were suspended from the practice of law, or not authorized to practice law.
Id. Plaintiff's request stated that the disclosure of these records would serve the public interest by promoting government transparency, disclosing whether "there are safeguards and verification procedures used by the U.S. Attorney's Office to prevent against circumstances" involving unlicensed Assistant U.S. Attorneys, and determining whether DOJ had taken "corrective actions or policies or remedial measures." Id. at 2. DOJ processed plaintiff's request in two separate request files: (1) "the requests for records pertaining to personnel matters and law license records;" and (2) "the request for records pertaining to any disciplinary matters that may have involved Ms. Jackson." Def.'s SMF ¶ 3.
Regarding the first category of requests related to personnel and law license records, DOJ informed plaintiff on August 9, 2010, that it had found no responsive records to plaintiff's FOIA request. Id. at ¶ 5. On August 18, 2010, plaintiff appealed this response to DOJ's Office of Information Policy ("OIP"), and on September 30, 2010, OIP denied plaintiff's appeal. Id. at ¶¶ 6--8. OIP advised plaintiff that he could obtain the records from the National Personnel Records Center ("NPRC"), a division of the National Archives and Records Administration ("NARA"), which is located in St. Louis, Missouri Id.
Plaintiff followed this advice and submitted a FOIA request for the documents to NARA. Ex. F to Stotter Decl. at 1--3. [Dkt. # 12]. NARA released three documents to plaintiff that had been located at NPRC but simultaneously informed him that it did not possess the records because they were never actually "accessioned" to NARA. Id. at 10--11. NARA explained:
I have conducted a search in NARA's Department of Justice holdings for records that would fall within the date span (1989--2001) you mention in your original FOIA request. Regretfully the records you seek have not been accessioned as permanent records into NARA's holdings. I recommend that you contact the Department of Justice's Records Management Office . . . . You may seek judicial review in the United States District Court for the . . . District of Maryland, which is where the records are located.
Regarding the second category of records, those related to disciplinary matters involving AUSA Jackson, DOJ informed plaintiff on June 10, 2010, that it "would neither confirm nor deny that any records existed concerning living third parties," explaining that the release of such records, assuming any existed, would violate the Privacy Act, 5 U.S.C. § 552a (2006), and would be exempt from the FOIA pursuant to Exemptions (b)(6) and (b)(7)(C). Def.'s SMF ¶ 9. On June 17, 2010, plaintiff appealed this decision to OIP. Id. at ¶ 10. On August 30, 2010, OIP denied the appeal. Id. at ¶ 11.
Finally, DOJ did not address the sixth category of documents plaintiff requested: "All agency records that document, discuss or otherwise describe any remedial measures or additional policies implemented by the U.S. Attorney's office to prevent future circumstance wherein a U.S. Attorney could be hired or remain employed as a U.S. Attorney, notwithstanding the fact that they were suspended from the practice of law, or not authorized to practice law." Ex. A to Boseker Decl. DOJ maintains that "[t]his item, both initially and currently, is not comprehended ...