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Victoria Toensing and Joseph E. Digenova v. U.S. Department of Justice

September 13, 2012

VICTORIA TOENSING AND JOSEPH E. DIGENOVA,
PLAINTIFFS,
v.
U.S. DEPARTMENT OF JUSTICE,
DEFENDANT.



The opinion of the court was delivered by: Judge Beryl A. Howell

MEMORANDUM OPINION

Plaintiffs Victoria Toensing and Joseph diGenova bring this action against the United States Department of Justice ("DOJ") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., seeking injunctive relief. The plaintiffs seek agency records relating to a criminal investigation performed by the United States Attorneys' Office for the District of Delaware ("Delaware USAO") in which the plaintiffs were subpoenaed to testify before a grand jury. Pending before the Court are cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons discussed below, the Court grants in part and denies in part the Defendant's Motion for Summary Judgment, ECF No. 11, and denies the Plaintiffs' Cross-Motion for Summary Judgment, ECF No. 15.

I.BACKGROUND

Before discussing the FOIA requests at issue, the Court will provide some background regarding the events giving rise to the Delaware USAO investigation and the plaintiffs' involvement in that investigation.

A.Grand Jury Subpoenas and Alleged Tape Recordings

The plaintiffs are two attorneys who are married to each other and operate a small, private law practice. Decl. of Victoria Toensing ("Toensing Decl.") ¶¶ 4--5, ECF No. 15-3; Decl of Joseph E. diGenova ("diGenova Decl.") ¶¶ 4--5, ECF No. 15-4. Beginning in September 2000 the plaintiffs represented the Executive of New Castle County, Delaware, Thomas Gordon, in legal proceedings related to an investigation of misuse of government funds conducted by the Delaware Attorney General. Toensing Decl. ¶ 6; Compl. ¶ 12, ECF No. 1.Sherry Freebery, a New Castle County administrative officer, was also being investigated, and she retained an attorney named Hamilton P. Fox, III, as legal counsel. Compl. ¶ 13. Later, from January to March of 2002, Gordon and Freebery retained the services of the law firm Kirkland & Ellis ("Kirkland") in a related matter, and the plaintiffs attended a meeting with the Kirkland lawyers "to ensure the lawyers understood what had occurred in 2000." Toensing Decl. ¶¶ 10--12.*fn1

In September 2002, the U.S. Attorney for the District of Delaware, Colm Connolly, opened an investigation directed at Gordon, Freebery, and others for misuse of public funds, and as a part of that investigation Mr. Connolly subpoenaed New Castle County for a number of documents. Compl.¶ 17; Toensing Decl. ¶ 14. The plaintiffs were also both subpoenaed as a part of this investigation in November 2003. Toensing Decl. ¶ 44. These subpoenas requested both testimony and documents on the part of the plaintiffs and were "limited to the retention of defamation counsel on behalf of [New Castle] County." Id. (internal quotation marks omitted). The plaintiffs moved to quash the subpoenas-an effort that lasted several months and included an appeal to the Third Circuit-and eventually the subpoenas were vacated as moot by the district court. See id. ¶¶ 47--48, 50.

The plaintiffs allege that, during the New Castle County investigation, Mr. Connolly engaged in various acts of prosecutorial misconduct, including making false statements in court filings and otherwise, id. ¶¶ 21, 43, 49, 52, 55, violating DOJ guidelines, id. ¶ 45, blackmailing a material witness to obtain favorable testimony, id. ¶ 41, and conspiring to disqualify the plaintiffs as counsel to Mr. Gordon by secretly recording planned conversations between Ms. Toensing and a New Castle County employee, id. ¶¶ 24--28. Most relevant in this action are these alleged secret recordings. According to the plaintiffs, Mr. Connolly sent a New Castle County employee named Shawn Tucker to speak with Ms. Toensing while wearing a hidden recording device. Id. ¶ 28. The alleged purpose of this conversation was to induce Ms. Toensing to speak with Mr. Tucker regarding the investigation, even though Mr. Tucker was represented by counsel and thus speaking with him would have been grounds to disqualify Ms. Toensing. Id.

¶¶ 25--26, 28. Ms. Toensing firmly believes that she was tape-recorded during this encounter, based primarily on a similar incident that occurred wherein Hamilton Fox was tape-recorded by Mr. Tucker during a meeting with New Castle County employees, allegedly at the behest of Mr. Connelly. See id. ¶¶ 24, 27; Decl. of Hamilton P. Fox ("Fox Decl.") ¶¶ 6--8, ECF No. 15-5. The plaintiffs further believe that Mr. Connolly's "legal maneuverings" were "for the sole purpose of getting rid of experienced counsel and investigator." Pls.' Mem. of P. & A. in Supp. Cross-Mot. Summ. J. & Opp'n Def.'s Mot. Summ. J. ("Pls.' Mem.") at 9, ECF No. 15-2.

B.FOIA Requests

Over the course of nearly three and a half years from June 2007 to December 2010, the plaintiffs submitted a total of eight FOIA requests to three separate subcomponents of the Department of Justice: the Executive Office of the United States Attorney ("EOUSA"), the Criminal Division of the DOJ ("Criminal Division"), and the Federal Bureau of Investigation ("FBI"). Only three of these requests are formally at issue in the instant action.

1.Plaintiffs' First and Second FOIA Requests ("2007 Requests")

On June 19, 2007, the plaintiffs submitted identical FOIA requests to the EOUSA and the Criminal Division, which sought "all documents collected, accumulated and/or maintained" by the subcomponents regarding:

* The subpoena of Joseph diGenova and/or Victoria Toensing to testify against their client, Thomas P. Gordon, including but not limited to all memoranda related to such requests and meeting notes;

* All responses and internal memoranda regarding such requests to subpoena diGenova and/or Toensing, including e-mails and any other electronic communication; and

* All calendar entries regarding requests or decisions to subpoena diGenova and/or Toensing.

See Decl. of John F. Boseker ("First Boseker Decl.") ¶ 6, Ex. A (Jan. 23, 2012 ), ECF No. 12-1; Decl. of John E. Cunningham III ("Cunningham Decl.") ¶ 4, Ex. A, ECF No. 12-2. The EOUSA forwarded the EOUSA request (the "2007 EOUSA request") to the Delaware USAO, where Mr. Connolly and administrative officer Theresa Jordon conducted a search for responsive records (the "2007 EOUSA search"). See Decl. of Theresa A. Jordan ("Jordan Decl.") ¶ 4, ECF No. 11-5. The search performed by Connolly and Jordan returned 675 pages of responsive records, 306 of which were eventually released to the plaintiffs between February and May 2008; the remainder were withheld in their entirety under FOIA Exemptions (b)(3), (b)(5), and/or (b)(7)(C). First Boseker Decl. ¶¶ 10, 12. The plaintiffs were informed that they could administratively appeal the agency's decision to withhold documents to the DOJ's Office of Information and Privacy ("OIP") within 60 days of being notified of the decision, but the plaintiffs did not do so. Id. ¶¶ 11, 13. A January 9, 2008 memorandum from Mr. Connolly to Gary Stewart, an Assistant Director at the EOUSA, however, indicated that, in conducting the 2007 EOUSA search, he was instructed by the EOUSA not to forward six categories of documents in response to the plaintiffs' request.*fn2 See Decl. of Jamie M. McCall ("First McCall Decl.") ¶ 2 (Jan. 23, 2012), ECF No. 11-6

The Criminal Division also conducted a search in response to the 2007 FOIA request and uncovered twelve responsive records, eight of which were released in full and four of which were withheld under FOIA Exemptions (b)(5), (b)(6), and/or (b)(7)(C). Cunningham Decl. ¶ 6. Additionally, the Criminal Division located 410 pages of responsive documents that had originated with the EOUSA, and those documents were referred to the EOUSA for review. See First Boseker Decl. ¶¶ 23--24. Of those 410 pages, 18 pages were released to the plaintiffs on May 30, 2008, and the remaining 392 pages were withheld under FOIA Exemptions (b)(3), (b)(5), and/or (b)(7)(C). Id. ¶ 24. Once again, although the plaintiffs were informed of their right to administratively appeal, within 60 days, the decision to withhold, they never exercised that right. Id. ¶¶ 25--26.

2.Plaintiffs' Third FOIA Request ("2008 Request")

Ms. Toensing submitted another FOIA request to the EOUSA on February 26, 2008, which sought different records, namely: "a copy of all documents and recordings collected, accumulated and/or maintained" by the defendant "during the investigation of Thomas P. Gordon," and specifically "[a]ny and all tapes and/or recordings of any kind of Victoria Toensing from August 2001 to May 26, 2004; and [a]ny and all transcripts of such tapes and/or recordings of Victoria Toensing." Id. ¶ 14, Ex. G. The EOUSA forwarded this request to the Delaware USAO in May of 2008. Jordan Decl. ¶ 5. An Assistant United States Attorney ("AUSA") named Patricia Hannigan handled the request and certified, without performing any search, that "we know there were no tapes/transcripts responsive to the request." Jordan Decl. Ex. C. Plaintiff Toensing was notified on October 28, 2008 that no responsive records had been found and that she had 60 days to administratively appeal that result to the OIP, though no administrative appeal was ever filed. First Boseker Decl. ¶¶ 20--23.

3.Plaintiffs' Fourth and Fifth FOIA Requests ("2009 Requests")

On February 11, 2009, the plaintiffs once again submitted identical FOIA requests to the EOUSA and the Criminal Division. Id. ¶ 27; Cunningham Decl. ¶ 7. These requests both sought all documents "collected, accumulated and or maintained" by each component regarding:

* The subpoena of Joseph diGenova and/or Victoria Toensing to testify against their client, Thomas P. Gordon, including but not limited to all memoranda related to such requests and meeting notes;

* All responses and internal memoranda regarding such requests to subpoena diGenova and/or Toensing, including e-mails and any other electronic communications;

* All calendar entries regarding requests or decisions to subpoena diGenova and/or Toensing;

* Any and all tapes and records of any kind of Toensing during the investigation of Gordon, specifically from August 2001 to May 26, 2004;

* Any and all transcripts of recordings of any kind of Toensing during the investigation of Gordon, specifically from August 2001 to May 26, 2004; and

* All documents submitted by the U.S. Attorney, Colm Connolly, to DOJ prior to the issuance of the subpoena.

First Boseker Decl. ¶ 27, Ex. N; Cunningham Decl ¶ 7, Ex. E. Essentially, these requests sought all of the subpoena and recording records that the plaintiffs had previously sought in their 2007 and 2008 requests, and it added a sixth category that included documents submitted by Mr. Connolly prior to the issuance of the subpoenas. In fact, in both requests the plaintiffs acknowledged: "We have previously requested these documents in a prior FOIA request." First Boseker Decl. Ex. N; Cunningham Decl. Ex. E.

The EOUSA forwarded the request to the Delaware USAO, which in turn advised the EOUSA that "all categories of documents are duplicative, save one," that "the duplicative requests are actually untimely [administrative] appeals of the earlier responses," and that the only responsive record found regarding the new category had already been sent during the previous production of documents. First Boseker Decl. ¶ 29. The EOUSA notified the plaintiffs on May 21, 2009, that no new responsive documents had been located, but the plaintiffs administratively appealed that determination on July 20, 2009. Id. ¶¶ 30, 32. On November 23, 2009, the OIP, which has responsibility for adjudicating FOIA administrative appeals, affirmed the EOUSA's action. See id. Exs. Q--R. The OIP Associate Director, Janice McLeod, who adjudicated the administrative appeal, wrote to the plaintiffs that "no new records had been located that had not already been located in response to your prior [FOIA] requests," and that "I have determined that EOUSA conducted an adequate, reasonable search for records responsive to your request." Id. Ex. R. Ms. McLeod added that "[i]f you remain interested in records that EOUSA previously processed for you, I suggest that you make a new request to EOUSA and specify that you seek records that you have previously requested." Id. Ms. McLeod additionally stated that one document previously located by the EOUSA, which had not been responsive to prior requests but was responsive to the plaintiff's new request category, was being withheld under FOIA Exemptions (b)(3) and (b)(5). Id. Finally, Ms. McLeod notified the plaintiffs that if they were dissatisfied with her decision, they could "file a lawsuit in accordance with 5 U.S.C. § 552(a)(4)(B)." Id.

With respect to the 2009 Criminal Division request, the Criminal Division's FOIA/Privacy Act Unit "promptly initiated searches of the component likely to possess responsive records-the Office of Enforcement Operations (OEO) Policy and Statutory Enforcement (PSEU)." Cunningham Decl. ΒΆ 8. PSEU replied on April 29, 2009, and June 23, 2009, that they did not locate any responsive records. Id. Ex. F. The plaintiffs were notified of this action on July 16, 2009, and they administratively appealed the action four days later to the OIP. See id. Exs. G--H. Ms. McLeod of the OIP affirmed the Criminal Division's action on November 9, 2009, telling the plaintiffs that "no new records were located that had not already been located in response to your prior [FOIA] request," and that "the Criminal Division conducted an adequate, reasonable search for records responsive to your request." Id. Ex. K. Ms. McLeod also once again ...


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