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Bagwell v. United States Department of Justice

United States District Court, District of Columbia

December 18, 2015

RYAN BAGWELL, Plaintiff,



Plaintiff Ryan Bagwell, a Pennsylvania State University alumnus, seeks to uncover public records related to the University’s role in the child-sex-abuse scandal surrounding its former assistant football coach Jerry Sandusky. Compl. ¶ 3. On April 30, 2014, Bagwell lodged a Freedom of Information Act (“FOIA”) request with the Executive Office for United States Attorneys (“EOUSA”), requesting “access to any and all records of investigations between November 1, 2011 and [April 30, 2014] that pertain to allegations of child sexual abuse that occurred on the campus of The Pennsylvania State University.” Id. ¶ 5. Bagwell’s interest in these particular records stems from a now-closed federal criminal investigation of the Sandusky matter and an independent investigation into the school’s handling of it conducted by former FBI Director Louis J. Freeh and his law firm. Pl.’s Mem. Opp’n Def.’s Mot. Summ. J. 1-2.

After some back-and-forth involving Bagwell, EOUSA’s FOIA/Privacy Act office, and DOJ’s Office of Information Policy (“OIP”), EOUSA provided Bagwell with a final response to his FOIA request on July 8, 2015, several months after Bagwell filed this action. It released 517 pages of records and withheld 104 pages in full. Id. at 4. It also withheld over 2, 700 pages of records and 86 gigabytes of electronic information that it never reviewed but instead categorically labeled “grand jury information” or “grand jury material.” Id.; Def.’s Mem. Supp. Mot. Summ. J. 8-9. DOJ has now moved for summary judgment, contending that it has produced all of the responsive records to which Bagwell is entitled, and Bagwell has cross-moved for summary judgment, contending that DOJ has not met its burden to show that the withheld records are exempt from FOIA’s disclosure requirements. Because the Court cannot determine-based on the declarations and Vaughn Index provided by DOJ-whether the search for responsive records was adequate or to what degree any FOIA exemptions shield the withheld documents from disclosure, it will defer resolution of the motions to allow DOJ an opportunity to supplement its documentation.

I. Standard of Review

Congress passed FOIA “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Am. Civil Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1, 5 (D.C. Cir. 2011). The statute imposes a general obligation on the government to provide records to the public. 5 U.S.C. § 552(a). Although FOIA provides for exceptions to this general obligation to disclose, 5 U.S.C. § 552(b), “[t]he basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed, ” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). Thus, FOIA “‘exemptions are explicitly made exclusive, ’” Milner v. U.S. Dep’t of Navy, 562 U.S. 562, 565 (2011) (citing EPA v. Mink, 410 U.S. 73, 79 (1973)), and they “must be ‘narrowly construed, ’” id. (citing FBI v. Abramson, 456 U.S. 615, 630 (1982)).

FOIA cases are appropriately decided on cross-motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In deciding a motion for summary judgment, the Court assumes the truth of the non-movant’s evidence and draws all reasonable inferences in the non-movant’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The government bears the burden to establish that its claimed exemptions apply to each document for which it invokes an exemption. Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). The government cannot satisfy this burden with affidavits that are vague or conclusory, or merely parrot the statutory standard. Consumer Fed’n of Am. v. U.S. Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006). The declarations must describe the justifications for withholding in “specific detail, demonstrat[ing] that the information withheld logically falls within the claimed exemption.” Am. Civil Liberties Union, 628 F.3d at 619. “When demonstrating that a FOIA exemption applies to some portion of a document withheld, the agency must also provide a detailed justification for its non-segregability, ” Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (emphasis added), and the agency should “describe what portion of the information is non-exempt and how that material is dispersed throughout the document, ” Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977).

II. Analysis

Both parties’ motions for summary judgment revolve around four main issues: (1) whether DOJ’s search for responsive records was adequate; (2) whether DOJ is operating under the correct legal standard for withholding “grand jury material”; (3) whether DOJ’s Vaughn Index is adequate; and (4) whether DOJ has satisfied its segregability obligations. The Court will discuss each in turn.

A. Adequacy of the Search

The Court cannot conclude, based on the record before it, that DOJ’s search for responsive records was adequate. “[A]n agency responding to a FOIA request must ‘conduct[] a search reasonably calculated to uncover all relevant documents, ’ and, if challenged, must demonstrate ‘beyond material doubt’ that the search was reasonable.” Truitt v. U.S. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (alteration in original) (quoting Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). “‘The issue is not whether any further documents might conceivably exist but rather whether the government’s search for responsive documents was adequate.’ The adequacy of an agency’s search is measured by a ‘standard of reasonableness, ’ and is ‘dependent upon the circumstances of the case.’” Id. (quoting Weisberg, 705 F.2d at 1351). “If, however, the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” Id. Furthermore, “[i]n order to establish the adequacy of a search, agency affidavits must be . . . ‘relatively detailed and non-conclusory, and . . . submitted in good faith.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). These “affidavits are accorded a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.’” Id. (quoting SafeCard Servs., 926 at 1200).

At present, DOJ has failed to demonstrate beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents. First, the FOIA contact person for the United States Attorney’s Office for the Middle District of Pennsylvania (“USAO/MDPA”) attests to having searched “all systems of records located within the USAO/MDPA that were likely to contain responsive records to Plaintiff’s request, ” Decl. of Jodi Matuszewski ¶ 15, but does not indicate whether this search included the office’s email system. Clearly, DOJ considered certain emails to be responsive to Bagwell’s request, as it acknowledged in its Vaughn Index that it withheld some “email conversations among Assistant United States Attorneys.” Vaughn Index - EOUSA, ECF No. 12-5. The Court has no way of knowing, however, the method by which DOJ searched for and located those particular emails and thus cannot determine whether the search was likely to have captured all responsive emails. Second, the Court’s confusion over the status of any email search is heightened by the public remarks of former FBI Director Freeh, who conducted the independent investigation into the Sandusky matter “in parallel with several other active investigations by agencies and governmental authorities, including the . . . United States Attorney [for the Middle District of Pennsylvania].” Remarks of Louis Freeh, July 12, 2012, ECF No. 13-8. Mr. Freeh stated that he “continuously interfaced and cooperated with those agencies and authorities, ” id., which at least suggests that a record of communication may exist between his firm and USAO/MDPA regarding the investigation. While “an agency’s failure to find a particular document does not necessarily indicate that its search was inadequate, ” North v. U.S. Dep’t of Justice, 774 F.Supp.2d 217, 222 (D.D.C. 2011), in this instance the search’s apparent failure to uncover any material along these lines raises a legitimate question as to thoroughness of the search. The current record thus leaves the Court in substantial doubt as to the sufficiency of DOJ’s search.

B. Grand Jury Material

DOJ has also failed adequately to justify its invocation of FOIA Exemption (b)(3), specifically as it relates to what DOJ labels “grand jury material.” Def.’s Mem. Supp. Mot. Summ. J. 9. This exemption “permits an agency to withhold material ‘specifically exempted from disclosure by statute . . . provided that such statute [requires withholding] in such a manner as to leave no discretion on the issue.’ 5 U.S.C. § 552(b)(3).” Senate of the Commonwealth of Puerto Rico on Behalf of Judiciary Comm. v. U.S. Dep’t of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987). As relevant here, “[t]he Federal Rules of Criminal Procedure, in turn, prohibit . . . disclosure of ‘matters occurring before [a] grand jury.’ Fed. R. Crim. P. 6(e)(2). Relying on the incorporation of Rule 6(e) within exemption (b)(3), ” id., DOJ here contends that “grand jury material is categorically exempt, ” and claims that “it is the customary practice of EOUSA when it receives requests for ‘all records’ as in this case, to inform the USAO to respond with all responsive records except for materials related to the grand jury, which are exempt as a matter of law.” Def.’s Mem. Supp. Mot. Summ. J. 9. Not all material that relates to a grand jury, however, is exempt as a matter of law.

The Court of Appeals for the D.C. Circuit has held that “[t]here is no per se rule against disclosure of any and all information which has reached ...

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