United States District Court, District of Columbia
LONNIE J. PARKER, Plaintiff,
UNITED STATES DEPARTMENT OF JUSTICE, OFFICE OF PROFESSIONAL RESPONSIBILITY, Defendant.
E. Boasberg United States District Judge
reports that a former Assistant United States Attorney in
Arkansas had represented the United States in court despite
lacking a valid license to practice law got Plaintiff Lonnie
J. Parker's attention. See ECF No. 10-3
(Declaration of Lonnie J. Parker), ¶ 3. Wanting to
understand how the AUSA had been hired and permitted to
litigate on behalf of the United States, and whether such
misconduct could be prevented moving forward, Parker
submitted a Freedom of Information Act request to Defendant,
the Department of Justice's Office of Professional
Responsibility. After OPR initially told Plaintiff it would
neither confirm nor deny the existence of responsive records,
he administratively appealed and eventually filed suit here.
Defendant then changed course and agreed to produce all
non-exempt material. It released some records to Plaintiff
and referred others to three different DOJ components for
disclosure decisions. The parties have now cross-moved for
summary judgment, and the Court sides with the government on
all but one issue.
February 2014, Plaintiff submitted a FOIA request to OPR,
seeking records “regarding any investigation or
consideration of disciplinary actions involving the
unauthorized practice of law by former Assistant U.S.
Attorney Lesa Gail Bridges Jackson . . . .” ECF No.
23-1, Exh. D at 1. OPR, which investigates allegations of
improper conduct by DOJ attorneys, see 28 C.F.R.
§ 0.39a, initially resisted disclosure. It issued a
Glomar response, thereby refusing to confirm or deny
the existence of any records responsive to Plaintiff's
request. See ECF No. 7-2 (Declaration of Ginae
Barnett), ¶¶ 6, 14-15 and Exh. C. After Plaintiff
exhausted his administrative remedies, id., Exh. D,
he filed suit in July 2015, alleging that Defendant had
violated FOIA by failing to provide all non-exempt responsive
records and failing to undertake an adequate search.
See ECF No. 1 (Complaint), ¶¶ 21-22.
answering, OPR moved for summary judgment, explaining that
because it believed that DOJ had not officially acknowledged
an investigation into Bridges Jackson, OPR's
Glomar response was appropriate. See ECF
No. 7 at 4-7. Plaintiff then filed his own summary-judgment
motion and supporting materials, through which OPR learned
that the Executive Office for United States Attorneys,
another DOJ component, had in fact already revealed, through
a document previously released to Plaintiff, that OPR had
investigated Bridges Jackson. See ECF No. 14 at 1-2.
OPR accordingly withdrew its Glomar response and
summary-judgment motion and agreed to release to Parker all
non-exempt records and to provide a Vaughn Index
describing its withholdings. Id. The Court thus
denied without prejudice as moot Plaintiff's motion for
summary judgment. See Minute Order of Nov. 3, 2015.
Barnett, a Government Information Specialist with OPR, then
processed Parker's FOIA request and identified 251 pages
of responsive documents. See ECF No. 23-1 (Revised
Third Declaration of Ginae Barnett), ¶¶ 1, 7. OPR
released 18 pages in their entirety and, pursuant to
Exemptions 5, 6, and 7(C), withheld 20 pages in part and 149
pages in full. It also referred 64 pages to other DOJ
components - specifically, 56 to EOUSA, 6 to the Justice
Management Division, and 2 to the Office of Information
Policy - for processing and direct response to Parker.
Id., ¶¶ 8-13. OPR then prepared a
Vaughn Index containing a description of the 20
pages that it had withheld in part and the 149 pages that it
had withheld in full, along with the applicable FOIA
exemption(s). Id., Exh. C.
produced some records, withheld others, and referred a
portion to other DOJ components, OPR believes it has
satisfied its FOIA obligations and now renews its Motion for
Summary Judgment. See ECF No. 23 (Def. Mot.).
Parker, conversely, has filed a Cross-Motion to the same
effect. See ECF No. 27 (Pl. Mot.). After reviewing
the briefing, the Court ordered OPR to provide four documents
for in camera review. See Minute Order of
Sept. 26, 2016. The agency complied, see ECF No. 31,
and, having reviewed the documents, the Court now proceeds to
address the parties' contentions.
judgment may be granted if “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A fact is “material” if it is
capable of affecting the substantive outcome of the
litigation. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute is “genuine” if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. See Scott v.
Harris, 550 U.S. 372, 380 (2007); Liberty
Lobby, 477 U.S. at 248. “A party asserting that a
fact cannot be or is genuinely disputed must support the
assertion” by “citing to particular parts of
materials in the record” or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
56(c)(1). The moving party bears the burden of demonstrating
the absence of a genuine issue of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In
the event of conflicting evidence on a material issue, the
Court is to construe the conflicting evidence in the light
most favorable to the non-moving party. See Sample v.
Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).
cases typically and appropriately are decided on motions for
summary judgment. See Brayton v. Office of U.S. Trade
Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA
case, a court may grant summary judgment based solely on
information provided in an agency's affidavits or
declarations when they “describe the justifications for
nondisclosure with reasonably specific detail, demonstrate
that the information withheld logically falls within the
claimed exemption, and are not controverted by either
contrary evidence in the record nor by evidence of agency bad
faith.” Larson v. Dep't of State, 565 F.3d
857, 862 (D.C. Cir. 2009) (citation omitted). “Unlike
the review of other agency action that must be upheld if
supported by substantial evidence and not arbitrary or
capricious, the FOIA expressly places the burden ‘on
the agency to sustain its action' and directs the
district courts to ‘determine the matter de
novo.'” Dep't of Justice v. Reporters Comm.
for the Freedom of the Press, 489 U.S. 749, 755 (1989)
(quoting 5 U.S.C. § 552(a)(4)(B)).
enacted FOIA in order “to pierce the veil of
administrative secrecy and to open agency action to the light
of public scrutiny.” Dep't of the Air Force v.
Rose, 425 U.S. 352, 361 (1976) (quotation marks and
citation omitted). “The 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.”
John Doe Agency v. John Doe Corp., 493 U.S. 146, 152
(1989) (citation omitted). The statute provides that
“each agency, upon any request for records which (i)
reasonably describes such records and (ii) is made in
accordance with published rules . . . shall make the records
promptly available to any person.” 5 U.S.C. §
552(a)(3)(A). Consistent with this statutory mandate, federal
courts have jurisdiction to order the production of records
that an agency improperly withholds. See id. §
552(a)(4)(B); Reporters Comm., 489 U.S. at 754-55.
“At all times courts must bear in mind that FOIA
mandates a ‘strong presumption in favor of
disclosure.'” Nat'l Ass'n of Home
Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002)
(quoting Dep't of State v. Ray, 502 U.S. 164,
previously noted, the parties have cross-moved for summary
judgment. In the course of the briefing, they have helpfully
narrowed the issues remaining in dispute to three: (1)
Whether Plaintiff is entitled to summary judgment as a matter
of law because Defendant filed a Motion for Summary Judgment
instead of an Answer; (2) Whether Defendant properly withheld
portions of four documents pursuant to Exemptions 6 and 7(C);
and (3) Whether OPR has satisfied its FOIA obligations in
regard to the documents referred to EOUSA. Before addressing
these in turn, the Court notes that Plaintiff does not
challenge the adequacy of the search or the applicability of
Exemption 5 to any of the records at issue. The Court thus
need not discuss those topics.