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Parker v. U. S. Department of Justice Executive Office for United States Attorneys

United States District Court, D. Columbia.

September 23, 2014

LONNIE J. PARKER, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE Executive Office for U.S. Attorneys, Defendant

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For Lonnie J. Parker Dr., Plaintiff: Daniel J. Stotter, LEAD ATTORNEY, STOTTER & ASSOCIATES LLC, Corvallis, OR.

For United States Department of Justice Executive Office for United States Attorneys, Defendant: Shuchi Batra, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

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MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge.

Plaintiff Lonnie J. Parker brings this action against defendant the U.S. Department of Justice (" DOJ" ), Executive Office for U.S. Attorneys (" EOUSA" ) under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 et. seq. (2012). Compl. ¶ 1 [Dkt. # 1]. Plaintiff submitted a FOIA request to defendant seeking records related to former Assistant U.S. Attorney (" AUSA" ) Lesa Gail Bridges Jackson and her unauthorized practice of law while working for DOJ. Id. Defendant did not produce any responsive records, and plaintiff filed his complaint on December 3, 2010. Id.

This is the third Memorandum Opinion in this case, and the Court must again determine whether defendant conducted an adequate search for responsive records and whether its withholdings of responsive records are justified. The Court finds that defendant has yet to demonstrate that its searches were adequate, but that most of the contested documents were properly withheld. Therefore, the Court will once again remand this case to defendant so that it may conduct an adequate search for responsive records.[1] The Court will also direct defendant to release the non-exempt portions of the responsive records it found.

BACKGROUND

On April 26, 2010, plaintiff submitted a FOIA request to defendant seeking records related to Lesa Gail Bridges Jackson and her unauthorized practice of law while working as an Assistant U.S. Attorney. See Ex. A to Decl. of John F. Boseker [Dkt. # 7]. Plaintiff sought six types of

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documents, which the Court later grouped into three broad categories:

Category one: personnel matters and law license records
(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;

Category two: disciplinary matters
(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;
Category three: remedial measures
(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 circumstances 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.

Id.; see also 1st Mem. Op. [Dkt. # 18] at 6, 9, 16 (describing the three categories).

Defendant did not produce any documents in response to plaintiff's requests. Compl. ¶ 15. After administratively appealing defendant's decision, plaintiff filed a complaint in this Court on December 3, 2010. See Compl. ¶ ¶ 16-26. The parties filed cross-motions for summary judgment, see Pl.'s Mot. for Summ. J. [Dkt. # 12]; Def.'s Mot. for Summ. J. [Dkt. # 7], and in a March 29, 2012 memorandum opinion, the Court denied both motions and remanded the case to the agency for further action. 1st Mem. Op. at 9, 15-16 (ordering defendant to conduct a more thorough search for category one records, to fully justify its withholding of records responsive to category two, and to respond to the category three request).

In January and February of 2013, the parties renewed their motions for summary judgment. Def.'s Renewed Mot. for Summ. J. [Dkt. # 26]; Pl.'s Renewed Mot. for Summ. J. [Dkt. # 27]. In a memorandum opinion dated September 30, 2013, the Court again denied both motions and remanded the matter to the agency for further action. 2d Mem. Op. at 12 [Dkt. # 37]. Specifically, the Court ordered defendant to produce redacted versions of documents related to category one of plaintiff's FOIA request, id. at 10, and, with respect to categories two and three, to conduct an adequate search and produce all segregable non-exempt information to plaintiff, or to submit a supplemental declaration demonstrating

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that it had otherwise complied with its duties under FOIA. Id. at 11.

Defendant complied with the Court's order to produce the category one documents in December, 2013. Def.'s Notice of Compliance [Dkt. # 42]. On January 10, 2014, plaintiff notified the Court there were still issues to be resolved. Pl.'s Notice of Contested Issues [Dkt. # 44]. Pursuant to an order of the Court, plaintiff submitted a supplemental brief on February 11, 2014. Pl.'s Supp. Br. [Dkt. # 45]; see also Jan. 21, 2014 Minute Order.

Plaintiff asserts that defendant has not yet conducted an adequate search for records related to categories two and three of his FOIA request and that the exemptions claimed by defendant were unjustified. Pl.'s Supp. Br. at 4-20. On February 25, 2014, defendant responded that it had conducted an adequate search and that all responsive records were properly withheld under Exemptions 5 and 6 of FOIA, as well as the Privacy Act. Def.'s Resp. to Pl.'s Supp. Br. [Dkt. # 46] (" Def.'s Resp." ); see also 5 U.S.C. § § 552(b)(5)-(6), 552a. With leave of the Court, plaintiff filed a sur-reply to defendant's response on March 14, 2014. Pl.'s Sur-Reply [Dkt. # 48]; see also Feb. 28, 2014 Minute Order.

STANDARD OF REVIEW

In a FOIA case, the district court reviews the agency's action de novo and " the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B); accord Military Audit Project v. Casey, 656 F.2d 724, 738, 211 U.S.App.D.C. 135 (D.C. Cir. 1981). " FOIA cases are typically and appropriately decided on motions for ...


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