United States District Court, District of Columbia
ALLEN L. WISDOM, Plaintiff,
UNITED STATES TRUSTEE PROGRAM, Defendant.
E. BOASBERG United States District Judge
Michael Scott was admonished on The Office, there is
a lot more to bankruptcy than just "declaring" it
loudly to coworkers. Plaintiff Allen Wisdom knows this fact
all too well. He has been going through a bankruptcy
proceeding before a federal court in Idaho since 2011. At the
outset of that action, the United States Trustee appointed
Jeremy Gugino to act as the private trustee on his case.
Wisdom and Gugino, however, quickly arrived at loggerheads,
and, by the close of 2013, the former had filed an adversary
proceeding against the latter, who then resigned from his
issue in the present case are Freedom of Information Act
requests that Wisdom subsequently lodged with Defendant
United States Trustee Program to acquire information related
to his bankruptcy proceeding and Gugino's service as a
trustee. Having been unsuccessful in obtaining the material
he sought, Wisdom brought this pro se action, in
which both sides now move for summary judgment. The Court
concludes that an issue of material fact exists as to whether
Defendant conducted adequate searches in response to these
requests and properly relied on the exemptions cited to
justify most of its withholdings. The Court will, therefore,
largely deny both Motions.
understand the present competing Motions requires a lengthy
back story, which sets forth the protracted back-and-forth
between Wisdom and the Agency over the scope and processing
of the FOIA requests at issue. After the Court briefly
outlines the general agency structure and the facts that gave
rise to Wisdom's desire for these records, the subsequent
sections march through this procedural background as it
pertains to each of his inquiries. A final section rounds out
the retelling with the particulars of what has occurred since
suit was filed.
General Agency Structure
United States Trustee Program, housed within the Department
of Justice, oversees the administration of bankruptcy cases
and private trustees. See ECF No. 14 (Motion) at 3.
Sitting atop its structure, the Executive Office for the
United States Trustees (EOUST) provides general policy and
legal guidance to trustees and handles the Program's
administrative functions, including responding to FOIA
requests. Id. at 4. EOUST, in furtherance of these
duties, also promulgates administrative procedures for the
suspension and removal of bankruptcy trustees. See28C.F.R.
down the pyramid, a United States Trustee is appointed by the
Attorney General for each federal judicial district in the
country. See 28 U.S.C. § 581(a). This Trustee,
in turn, establishes, maintains, and supervises the panel of
private trustees who administer Chapter 7 bankruptcies in
those districts. See Mot, at 4. The Trustee for
Region 18 works out of the Regional Office in Seattle and
oversees the judicial district of Idaho (among others).
12, 2007, the Region 18 Trustee appointed Jeremy Gugino to
serve as a private trustee on its panel. Id. at 5-6
& Exh. R.
four years later, Wisdom filed a voluntary petition for
relief under Chapter 7 of the Bankruptcy Code in the United
States Bankruptcy Court for the District of Idaho.
Id. at 6. The Trustee, accordingly, appointed Gugino
to his case. Id. at 6. The two men, however, did not
work well together, and, in December 2013, Plaintiff filed an
adversary proceeding in the bankruptcy court against Gugino,
alleging that the trustee had engaged in various forms of
misconduct in handling his case. See ECF No. 18
(Cross-Motion) at 6.
thereafter, on December 31, 2013, Gugino resigned from his
position as a member of the region's private-trustee
panel. See Mot. at 6 & Exh. R.
FOIA Request 2015-2053
March 19, 2015, over a year later, Plaintiff submitted a FOIA
request to EOUST for 15 categories of records that related
either to his bankruptcy proceeding or to Gugino's
service as a trustee. See ECF No. 14-1 (Declaration of Joseph
Carilli), ¶6. The request stated that it
"pertain[ed] only to records located at the Office of
the United States Trustee, District of Idaho" and
declared that Wisdom was willing to pay up to $450 in
attendant processing fees. See id, Exh. A
at 2, 4. That very same day, EOUST sent him a letter
explaining that his "complex" request had been
assigned tracking number 2015-2053. Id., Exh. B.
later, the agency followed up with a longer letter, this time
asking Wisdom to provide more details on what he was seeking
to help it "accurately estimate all applicable fees for
search, review, andor duplication of [the] requested
records." Id., Exh. C. at 1. Defendant further
explained that, due to privacy concerns, "most if not
all of the [requested] records relating to [Gugino's]
trustee performance evaluations [we]re likely to be withheld
in part or in full under FOIA exemptions." LI The letter
nevertheless informed Wisdom that he would be responsible for
fees related to processing these records unless he chose to
narrow his inquiry's scope. Id. at 1-2. The
agency, finally, requested that Wisdom confirm that his
request was limited only to records located at the Boise
office and, in a footnote, explained that many of the
requested documents would likely be held at EOUST here in
Washington, D.C. Id. at 2.
quickly responded. Id., Exh. D. In his own letter,
on April 9, 2015, Wisdom declined to narrow the scope of his
request and disagreed with the agency's prediction that
certain documents would ultimately be exempt from disclosure.
Id. at 1-2. Wisdom also confirmed that his request
focused only on records located at the Boise office, but, in
his own footnote, indicated that it did so because certain
regulations indicated that the documents he was requesting
are "initiated and/or generated by the District of
Idaho." Id. at 3 & n.15. He then hedged,
saying, "If for some reason, unknown to me, records
requested were either initiated by or generated by the Boise,
Idaho office but are actually located elsewhere then the
request for the records would be for wherever located."
later, EOUST responded that it now understood the scope of
2015-2053 to include "all records of any nature
contained in [Gugino's] oversight file . . . whether
maintained in Boise, Idaho or other [USTP] offices."
Id., Exh. E. To speed his recovery of the Boise
documents, however, EOUST recommended that Wisdom agree to a
two-stage "rolling release protocol." Id.
at 4. The agency, under this plan, would first search for and
release records found in the Boise office for his review; if
he wished to proceed with more records, only then would the
agency go to a stage-two search of the other offices.
Id. EOUST concluded that this "two-stage
method" would best enable Wisdom "to make a more
informed decision as to whether [he] wish[ed] to narrow the
scope of [his] search to just those records obtained from the
Boise, Idaho office" at a later date. Id. The
agency estimated as well that the fees for the request would
fall around $224.50 -well below Wisdom's previous
commitment to pay up to $450. Id. at 3. It
nevertheless asked him to please "let [the agency] know
whether this is acceptable" and to provide pre-payment
of these fees by June 8, 2015. Id. at 4.
adequately complied, agreeing on May 11 that the agency's
"consolidated review of [his] request [wa]s
accurate" and indicating that he "d[id] not object
to the 'rolling release' protocol."
Id., Exh. F. He also attached a check for the
advance fee. Id. at 2.
cylinders seemed set to fire, then, but once the agency began
the search, it discovered that the archiving of certain
trustee reports had been done by date, rather than by
trustee. Id., Exh. G. EOUST thus reached out to
Wisdom a week later to inform him that it would now take
significantly longer than the agency had originally estimated
to weed out the reports related to Gugino. LI Defendant also
noted that the Boise office had confirmed to EOUST in the
meantime that some responsive reports were consolidated in
the Region 18 Office with reports from other federal
districts, meaning that at least some of the requested
documents would not be located at the Boise office after all.
responded to clarify that he was not seeking some of the
difficult-to-sift reports and to ask for an explanation of
why relevant records might be located outside the Boise
office despite certain regulations to the contrary.
Id. The parties worked out these issues over the
next few days in a further exchange of emails, and things
again seemed to be on track for a reasonably timely
completion of the searches. Id., Exh. H.
indeed, thereafter proceeded to search for the documents and
initially returned Gugino's check for $224.50 to him on
the ground that it did not require advance payment for
searches that were projected to cost less than $250.
Id., Exh. I. By July 23, 2015, however, the
agency's stage-one search of the Boise office had already
totaled 16.75 hours, thus yielding a fee of $411.25.
Id., Exh. J at 2. The agency sent Wisdom another
letter requesting that he now remit that amount by August 24,
2015, or it would close the processing of his request.
Id. Wisdom timely sent in the requested amount
again, although the government had still not turned over any
records. Id., Exh. K.
a month later, in fact, Wisdom had still heard nothing from
the agency about the documents he had requested. Frustrated
that he had yet to see a single record, Plaintiff sent
another email to Defendant, asking it to let him know when
his request, now pending for 167 days, would be completed,
"at least" as to the first part. Id., Exh.
L. EOUST responded the next day that it anticipated a partial
release later that month. Id., Exh. M.
agency, however, again failed to produce anything on its
proffered timeline. Well over a month later, on October 8,
Wisdom thus inquired anew about the status of his request.
Id., Exh. N. He reiterated his previous complaint
that the agency's delay in producing records was in
serious breach of the "statutory time requirement in
which to comply with release of the requested documents"
and asked that it either provide a reasoned basis for its
refusal to give him the documents or fast-track their
release. Id. The very next day, EOUST sent Wisdom a
partial stage-one batch of documents. Id., Exh. O.
This initial release contained 58 pages "subject to
redactions pursuant to FOIA Exemptions (b)(5) andor
(b)(6)." Id. at 2. Over two months later, the
agency sent a second stage-one crop of 111 pages, again
subject to redactions under various FOIA exemptions.
Id., Exh. P. Two months later, on February 2, 2016,
the agency sent a third - which it described as a
"final" -release of redacted records from its
search of the Boise office. Id., Exh. Q.
footnote accompanying this final set of documents, the agency
indicated that "for administrative purposes only"
it would consider these stage-one releases - i.e.,
the first half of his "bifurcated" 2015-2053
request - as the entirety of his FOIA request, but, should he
"wish to pursue the second part of [his] request, "
it would prioritize that search under anew case number as
though it had been received on March 19, 2015. Id.
at 1 n.2. The agency further indicated that it would apply
the same fee rates to this stage-two search if he elected to
proceed with it. Id. at 2-3. By this time, nearly a
full calendar year had passed since Wisdom first submitted
his 2015-2053 request and, as discussed below, this case had
already been filed.
FOIA Request 2016-2003
days after the first 2015-2053 release, Wisdom submitted on
October 13, 2015, another FOIA request to the Agency for any
records related to the processing of his 2015-2053
request. Id., Exh. S. He did so based on his belief
that someone within the agency was obstructing his access to
the documents he had requested. See ECF No. 18-1
(Declaration of Allen L. Wisdom), ¶ 26. In particular,
he felt that the agency's vacillations on the location of
the records, the applicable exemptions, and the fees
associated with the search might indicate interferance with
his efforts to acquire more information about Gugino's
service as a trustee. Id., ¶¶ 26, 28. The
agency wrote back two days later, designating this new FOIA
request as 2016-2003 and, as before, classifying it as
complex. See Mot, Exh. T.
months went by before the agency followed up with a call to
Wisdom to discuss his new inquiry's scope. Id.,
Exh. U. This conversation was immediately memorialized in an
email from EOUST to Wisdom on January 15, 2016, for the
express purpose of "confirm[ing] what we discussed and
to ensure that [the agency] had described accurately how
[Wisdom] wish[ed] to narrow [his request's] scope."
Id. In sum, EOUST would search for: "1) all
administrative processing notes in the Idaho office; and 2)
any correspondence between the Idaho office and the EO about
FOIA 2015-2053 regarding the documents themselves; and 3) any
email or other correspondence such as reports showing the
procedures EO staff employed in processing the record as
received from Idaho." Id. at 2. The search,
however, would exclude "[Executive Office]-only,
internal records discussing solely the application of
exemptions" and "correspondence relating to
communications with Assistant United States Attorney Fred
Haynes regarding" this lawsuit (discussed below) over
the agency's actions in regard to request 2015-2053.
Id. at 2. A day later, Wisdom wrote back confirming
this description was "quite accurate." Id.
and the agency also negotiated a further narrowing of this
request on February 23, 2016, again documenting their
agreement in an email that Wisdom confirmed to be accurate.
Id., Exh. V. This time they agreed that the agency
would look for "[a]ny conversations between any employee
of the UST program located in the Boise, Idaho field office
and a third party, regarding your 2015-2053 FOIA
later, EOUST confirmed that "[a]fter a reasonable search
by the Boise, Idaho office of their agency records, no
records were located that appear to meet your request for
information." Id., Exh. W. In other words, the
agency released no documents pursuant to this second request,
FOIA Request 2016-2033
February 23 - i.e., the same day that the parties
communicated about narrowing his 2016-2003 FOIA request
-Wisdom confirmed that he did "wish to go forward with
the second phase [of 2015-2053] and obtain documents from the
other than [sic] Idaho UST offices." ECF No. 24
(Opposition to MSJ), Suppl. Exh. B. Over the next few days,
the agency thus wrote two follow-up emails to Wisdom,
referring to his stage-two request as a "new" FOIA
case and designating it a tracking number of 2016-2033.
Id., Suppl. Exh. C.
immediately objected to the agency's characterizations of
this as a "new" inquiry via his own letter on
February 26, specifically complaining that its
"unilateral redesignat[ion]" of his request was
unjustified when it was simply the previously agreed-upon
second stage of 2015-2053. Id., Suppl. Exh. D. To
support his position, Wisdom quoted from previous letters
exchanged between himself and the agency about the expediency
benefits of a rolling two-stage process. Id. He
noted, in particular, that the language in these
communications of a "second stage" hardly implied
the agency would consider the search to be an entirely
"new" request at some future point. Id. A
few days later, the agency responded by insisting that his
request was indeed "new, " though it also
nevertheless continued to refer to it as the second part of
his "bifurcated" 2015-2053 request. Id.,
Suppl. Exh. E.
March 7, 2016, Defendant completed its search of other USTP
offices for responsive records and notified Wisdom via email
that it estimated a review of the discovered documents would
cost him around $567.53 in pre-paid fees. Id.,
Suppl. Exh. G at 3. Within days, Wisdom sent in the payment,
and the parties worked out the exclusion of some potentially
responsive documents in an effort to reduce unnecessary or
duplicative costs. Id., Suppl. Exhs. F & G.
March 18, the agency sent Plaintiff 209 pages of redacted
documents pursuant to this final request. Id.,
Suppl. Exh. I.
October 23, 2015, shortly after the agency's first
2015-2053 release and Wisdom's submission of request
2016-2003 (the one related to the processing of his first
request), he filed the current action. See ECF No. 1
(Complaint). In his initial Complaint, Wisdom alleged that
USTP had unlawfully withheld and redacted documents relevant
to his 2015-2053 request and initiated a multi-stage
"rolling release" schedule that violated their
mutual agreement to timely turn over the documents in just
two stages. Id., ¶¶ 23-27.
little more than a month later, on November 30, Wisdom
amended his Complaint to reflect the agency's continued
failure to produce further documents or to make a final
determination on his 2015-2053 request. See ECF No.
2 (Amended Complaint). He also added anew claim to challenge
the agency's tardy response to his 2016-2003 request,
noting that he had heard nothing from the agency in over
twenty days since it had first assigned that inquiry a
tracking number. Id., ¶¶28-35. In short,
Wisdom effectively expanded the scope of this action to
include the agency's failure to produce documents for
both 2015-2053 and 2016-2003 within the applicable statutory
timeframes provided by FOIA, as Defendant had turned over
just one partial release of 2015-2053 documents at that
Defendant's Answer, the Court set a briefing schedule,
and the agency made the subsequent additional releases
discussed above. The parties' Cross-Motions for summary
judgment are now ripe.