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Wisdom v. United States Trustee Program

United States District Court, District of Columbia

January 13, 2017

ALLEN L. WISDOM, Plaintiff,


          JAMES E. BOASBERG United States District Judge

         As 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 post.

         At 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.

         I. Background

         To 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.

         A. General Agency Structure

         The 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. §58.6.

         Moving 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).

         B. Bankruptcy Proceeding

         On July 12, 2007, the Region 18 Trustee appointed Jeremy Gugino to serve as a private trustee on its panel. Id. at 5-6 & Exh. R.

         Around 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.

         Shortly 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.

         C. FOIA Request 2015-2053

         On 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.

         A week 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.

         Plaintiff 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." Id.

         A month 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.

         Wisdom 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.

         All 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. Id.

         Wisdom 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.

         EOUST, 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.

         Nearly 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.

         The 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.

         In a 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.

         D. FOIA Request 2016-2003

         Four 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.

         Several 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. at 1.

         Plaintiff 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 request." Id.

         A day 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, 2016-2003.

         E. FOIA Request 2016-2033

         On 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.

         Wisdom 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.

         On 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.

         On March 18, the agency sent Plaintiff 209 pages of redacted documents pursuant to this final request. Id., Suppl. Exh. I.

         F. Procedural History

         On 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.

         A 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 point.

         After 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.

         II. ...

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