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Bloomgarden v. United States Department of Justice

United States District Court, District of Columbia

February 5, 2016




Plaintiff Howard Bloomgarden brings this suit against the Department of Justice (“DOJ”) to compel the production of records by the Executive Office for United States Attorneys (“EOUSA”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. (Am. Compl. [ECF No. 11].)[1] After DOJ successfully moved for summary judgment-claiming that no responsive documents could be located-plaintiff appealed, and the case was remanded for further proceedings when responsive documents were subsequently located. (See Jan. 22, 2014 Mem. Op. [ECF No. 31]; Dec. 10, 2014 Order [ECF No. 38].) DOJ then declined to produce those documents, claiming various exemptions under FOIA, and the parties have now cross-moved for summary judgment. (Pl.’s Mot. for Summ. J. [ECF No. 50-3]; Def.’s Mot. for Summ. J. [ECF No. 69-1].) For the reasons stated below, defendant’s motion will be granted in part.


Plaintiff seeks to acquire documents from the disciplinary file of a former Assistant United States Attorney (the “former AUSA”), who worked for DOJ in the Eastern District of New York (“EDNY”) in the mid-1990s. (See Pl.’s Mot. for Summ. J. at 9-11.) Beginning in January 1995, the former AUSA was the lead prosecutor in a state-federal investigation into certain drug-related crimes, including the kidnapping and murder of Peter Kovach and Ted Gould, which eventually led to plaintiff accepting a guilty plea in the EDNY. (Id. at 1, 7-8.) The former AUSA was removed from plaintiff’s case in November 1995 (id. at 4), and his termination by DOJ was later proposed in a thirty-five page disciplinary letter (the “Letter”), which was accompanied by a table of contents and 3, 649 pages of supporting evidence (together, “the Disciplinary File”). (See Def.’s Mot. for Summ. J. at 5.) Plaintiff believes that the Disciplinary File may show that the AUSA engaged in prosecutorial misconduct ______. (See Pl.’s Mot. for Summ. J. at 36.) If such a showing could be made, plaintiff believes that it could help his effort to get a new trial before a California state court, where in 2014 he was convicted of the Kovach-Gould murders. (See Id. at 8-9.)

In February 2015, prior to the filing of the pending cross-motions, the Court ordered DOJ to produce an unredacted copy of the Letter for in camera review. (See Feb. 20, 2015 Order [ECF No. 42].) Weeks later, the Court held a status conference at which it noted that the Letter reflected the AUSA’s “professional failings, ” but it questioned the public’s interest in learning about an “inadequate, incompetent, sort of disobedient . . . employee.” (See Mar. 4, 2015 Hearing Tr. [ECF No. 45] at 20:20-22:5.) It also ordered DOJ to produce a Vaughn Index outlining DOJ’s basis for withholding the entire Disciplinary File under the FOIA. (See Mar. 10, 2015 Minute Order.) The Vaughn Index that DOJ submitted was, as the Court stated at a November 2015 hearing, “useless [and] deficient” because it impermissibly lumped hundreds of pages together in a single entry, making it impossible to understand which claimed exemptions applied to which documents (and why). (See Nov. 4, 2015 Hearing Tr. [ECF No. 81] at 7:12-23.) Nevertheless, having reviewed the Letter in camera, the Court did indicate that “it is probably true that [the Letter was not created] for law enforcement purposes and so [Exemption 7(C)] does not apply. [Exemption 6 might apply], but it only applies to the Letter.” (Id. at 11:17-20.) The Court then confirmed this ruling from the bench at a January 2016 hearing: “I've already ruled that the letter is not covered by [Exemption] 7(C) and that it is protected by [Exemption] 6.” (Jan. 5, 2016 Hearing Tr. at 11:13-14.)

Plaintiff now suggests that the Court’s ruling on the Letter was merely “tentative.” (See Pl.’s Mot. for Vaughn Index [ECF No. 105] at 7 n.8.) Therefore, to dispel any further doubt on that score, the Court issues the instant opinion.



Summary judgment is appropriate if the pleadings and evidence on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “In a FOIA case, summary judgment may be granted to the government if ‘the agency proves that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.’” Fischer v. Dep’t of Justice, 596 F.Supp.2d 34, 42 (D.D.C. 2009) (quoting Greenberg v. U.S. Dep’t of Treasury, 10 F.Supp.2d 3, 11 (D.D.C. 1998)). As relevant here, the agency has the burden to “prove that each document that falls within the class requested . . . is wholly exempt from the [FOIA’s] inspection requirements.” See Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978).


Having reviewed the Letter in camera and having considered the extensive briefs and arguments by the parties, the Court will rule on the exemptions relied on by defendant to justify the withholding of the Letter.[2] Those exemptions are 7(C) and 6.[3]

A. Exemption 7(C)

Exemption 7(C) protects from disclosure “records or information compiled for law enforcement purposes, but only to the extent that the [disclosure] . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). DOJ asserts that Exemption 7(C) applies because “[e]very document in the proposed removal and the evidence supporting that proposal is related to, created for, or involves the prosecution of a criminal case.” (Def.’s Mot. for Summ. J. at 15.) By DOJ’s rationale, virtually all documents in its possession would qualify, because they arguably have some attenuated “relat[ion] to” law enforcement purposes. However, this states the test too broadly-a document is not exempt if it is merely “related to” a criminal prosecution, but instead it must have been “compiled for” that purpose. See 5 U.S.C. § 552(b)(7)(C); Stern v. F.B.I., 737 F.2d 84, 89 (D.C. Cir. 1984).

Nor is it enough that a law enforcement agency, acting as an employer, compiled the document as part of a supervisory investigation into its own employee’s conduct. See Kimberlin v. Dep’t of Justice, 139 F.3d 944, 947 (D.C. Cir. 1998). Instead, to withhold an employee disciplinary file under Exemption 7(C), DOJ must show that it focuses “directly on specifically alleged illegal acts . . . of particular identified officials, acts which could, if proved, result in civil or criminal sanctions.” See Rural Hous. Alliance v. U.S. Dep’t of Agric., 498 F.2d 73, 81 (D.C. Cir. 1974) (emphasis added). DOJ does not contend that its investigation of the former AUSA involved any suspicion of ...

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