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Plunkett v. Department of Justice

United States District Court, District of Columbia

August 24, 2016

ANTHOINE PLUNKETT, Plaintiff,
v.
DEPARTMENT OF JUSTICE, Defendant

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS United States District Judge

         On February 9, 2011, Plaintiff brought this action under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA” or “the Act”), seeking to compel the Executive Office for United States Attorneys (“EOUSA”), a component of the Department of Justice (“Department”), to disclose records relating to his criminal prosecution and conviction. In February 2013, the Court granted in part and denied in part the Department's first motion for summary judgment and ordered the Department to supplement the record, to process additional records, and to release any remaining, non-exempt records. See Plunkett v. Dep't of Justice (“Plunkett I”), 924 F.Supp.2d 289, 307 (D.D.C. 2013). In September 2015, the Court ruled on the Department's second motion for summary judgment, holding that the Department had mostly addressed the previous concerns, but that three issues needed further clarification. See Plunkett v. Dep't of Justice (“Plunkett II”), 2015 WL 5159489 (D.D.C. Sept. 1, 2015). The Court identified the following remaining questions: (1) whether two binders of material identified in an email were, in fact, reviewed for responsive documents and, if so, what was found; (2) which, if any, of the documents referred to the Bureau of Prisons (“BOP”) for review were withheld and, if so, which FOIA exemptions are applicable; and (3) which portions of Document 2 in the Vaughn index were withheld as exempt material. Id. at *1.

         The Department has filed a third motion for summary judgment addressed to these questions. Dkt 59. The Court concludes that the Department has satisfactorily addressed the first and third questions, but that the Department has not adequately answered the second question. Accordingly, the Department's renewed motion is GRANTED in part and DENIED in part.

         I. BACKGROUND

         The full history of the case is familiar to the parties and is explained in-depth in the Court's prior opinions. See Plunkett I, 924 F.Supp.2d at 296-97; Plunkett II, 2015 WL 5159489, at *1-3. For present purposes, the Court recounts only those portions of the background relevant to the Department's renewed motion for summary judgment.

         Plaintiff was accused of hiring two men to murder Tyree Wimbush “because [Plaintiff] mistakenly thought Wimbush was a confidential informant for local drug investigators.” United States v. Bodkins, 274 Fed.Appx. 294, 296 (4th Cir. 2008) (per curiam). On April 18, 2008, the Fourth Circuit affirmed Plaintiff's convictions for conspiracy to travel in interstate commerce to commit murder for pecuniary gain, interstate travel to commit murder for pecuniary gain, and a number of other offenses. Id. at 295. On May 12, 2008, Plaintiff submitted a FOIA request to EOUSA seeking all records that “make[ ] reference to” or “relate[ ] to” him, including any records “generated and/or retained . . . as a result of the homicide of Tyree Nathaniel Wimbush.” Dkt. 1-1 at 2.

         In May 2009, EOUSA released some records and withheld others. Plunkett II, 2015 WL 5159489, at *2. EOUSA also referred some records to the BOP and to the U.S. Marshals Service. Id. On May 28, 2009, the six pages referred to the Marshals Service were released, with third-party identifying information properly redacted. Id. at *11. BOP referred some records back to EOUSA for further processing, and the Department, through EOUSA, ultimately withheld 160 pages of the returned records as “non-responsive/categorically third-party records.” Id. at *10 (quoting Plunkett I, 924 F.Supp.2d at 297) (citation omitted).

         Dissatisfied with the Department's response, Plaintiff filed this civil action in February 2011. Dkt. 1. EOUSA released additional records on June 2, 2011, and March 20, 2013. Plunkett II, 2015 WL 5159489, at *2, 6. The matter is now before the Court on the Department's third motion for summary judgment, Dkt. 59, which pertains to the three remaining issues identified by the Court, see Plunkett II, 2015 WL 5159489, at *1.

         II. DISCUSSION

         A. Binders

         In support of its second motion for summary judgment, the Department submitted a declaration by Jo T. Brooks, the FOIA contact in the U.S. Attorney's Office for the Western District of Virginia, describing the search for responsive records. See Dkt. 36-4 ¶ 1. In that declaration, Brooks asserted that on June 26, 2008 she was informed about “several” binders containing “discovery” from Plaintiff's criminal case and that “documents relating to” Plaintiff were “interspersed” in these “three, three-ring binders.” Id. ¶¶ 6, 14. Attached to the declaration, however, was an email that Brooks sent to EOUSA on June 27, 2008 in which she asserted that she had “received five 3[-inch] binders of discovery in which [Plaintiff's] material is interspersed.” Id. at 10 (emphasis added). When Plaintiff pointed out the discrepancy as to whether two binders had been reviewed, Dkt. 45 at 14, the Department filed a supplemental declaration by Brooks dated January 2014, Dkt. 49-3. In that declaration, Brooks stated, “At this point in time, I can only attest that the discrepancy noted in my June 27, 2008[, ] email was a result of defining all of the three-ring binders present in the boxes of material I had been given[ ] as discovery binders, when[, ] in fact, as determined during the February[ ] 2009 search of the files, not all of the binders contained original discovery materials and, as such, were not responsive to [Plaintiff's] request.” Id. ¶ 5.

         In denying in part the Department's second motion for summary judgment, the Court explained that Brooks's January 2014 supplemental declaration “raises at least two questions requiring further clarification[:]”

First, the declaration asserts that two of the five binders were not responsive because they did not contain “original discovery materials, ” but Plaintiff's FOIA request was not limited to “discovery materials.” Dkt. 16-5 at 20. Missing from the record is any description of what was contained in the two binders or a sufficient explanation for why any such records were either non-responsive or exempt from disclosure. Second, the declaration candidly qualifies the relevant paragraph by noting that “At this point in time, I can only attest” as follows. Dkt. 49-3 ¶ 5. It is unclear, however, whether, at the time she executed her supplemental declaration, Brooks reviewed the two binders to confirm that they did not contain any responsive records or whether she based her testimony on her best recollection of events that had occurred six years earlier.

Plunkett II, 2015 WL 5159489, at *6. The Court held that further clarification was required “[b]ecause a reasonable question exists regarding the contents of the two binders and whether they contained any material responsive to ...


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