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Wisdom v. United States Trustee Program

United States District Court, District of Columbia

September 1, 2017

ALLEN L. WISDOM, Plaintiff,


          JAMES E. BOASBERG United States District Judge.

         For over two years pro se Plaintiff Allen Wisdom has been fighting the decisions made by a private trustee in his Chapter 7 bankruptcy case. Based on his belief that the trustee, Jeremy Gugino, perpetrated fraud and other misconduct in administering bankruptcy cases, Wisdom submitted Freedom of Information Act requests to Defendant United States Trustee Program. He challenges the Agency's response to these requests in this action. In a prior round of summary-judgment briefing, Wisdom contested the adequacy of the Agency's search and reliance on FOIA Exemptions 5, 6, and 7(E). The Court found that, on the whole, the Agency had failed to adequately detail its search process and substantiate its redactions. See Wisdom v. U.S. Trustee Program, 232 F.Supp.3d 97, 116-19 (D.D.C. 2017). Following the Court's January 13, 2017, Opinion, Defendant renewed its search and released additional records. See ECF No. 38 (Declaration of Paul Bridenhagen), ¶¶ 53-54. The Agency now moves again for summary judgment, supported by an updated declaration and a revised Vaughn Index. Agreeing that this time around Defendant got it right, the Court will grant its Motion.

         I. Background

         As the prior Opinion sets forth the background in detail, the Court recounts only the facts relevant to the issues at hand. In 2011, Wisdom filed a voluntary petition for Chapter 7 bankruptcy relief in the United States Bankruptcy Court for the District of Idaho. The regional Trustee appointed Jeremy Gugino to Wisdom's case. Wisdom and Gugino had an acrimonious working relationship, in large part due to Gugino's determination that Wisdom's life-insurance policies should be liquidated. See Wisdom v. Gugino, No. 13-35409, 649 F. App'x 583, 584 (9th Cir. 2016) (unpublished). The bankruptcy court agreed with Gugino despite Wisdom's strenuous objections. Id. Wisdom then embarked on a quest to expose alleged misconduct by Gugino in his case as well as in connection with other debtors. In addition to filing an adversary proceeding against Gugino and others, see Wisdom v. Gugino, et al., Adv. Pro. 13-06045 (Bankr. D. Idaho 2013), Plaintiff also submitted a FOIA request to Defendant for 15 categories of records related to his bankruptcy proceeding and Gugino's service as trustee. After some back and forth, the parties agreed to a two-stage release schedule. First, the Agency would search for and release responsive records found in its Boise, Idaho, office (Request No. 2015-2053) and then would conduct a search for records in other locations (Request No. 2016-2033). Although Defendant assigned the requests two separate tracking numbers, both are actually part of Wisdom's initial request. See Wisdom, 232 F.Supp.3d at 114. After a year passed without receiving any documents, Wisdom submitted another request (Request No. 2016-2003) for records relating to the processing of his initial request.

         In 2015, shortly after submitting request 2016-2003, Wisdom filed this action, challenging the Agency's tardy response to his requests. The Agency thereafter released some documents, and Wisdom subsequently amended his Complaint to seek information that the Agency had withheld. See ECF No. 2 (Amended Complaint). Both sides moved for summary judgment, which the Court largely denied. See Wisdom, 232 F.Supp.3d 97. In that decision, the Court ruled on four matters, three of which Wisdom reprises today.

         First, the Court rejected Defendant's claim that Wisdom had not administratively exhausted his remedies with respect to all of his FOIA requests. Second, it found that Defendant's supporting affidavit from Joseph Carilli was procedurally sufficient. Substantively, however, the Court held that the affidavit was facially flawed as to all three requests because it did not, “at a minimum, ‘aver that [the Agency] has searched all files likely to contain relevant documents.'” Id. at 116 (quoting Am. Immigration Council v. Dep't of Homeland Sec., 21 F.Supp.3d 60, 71 (D.D.C. 2014)). The Court thus ordered Defendant to either supply a more detailed affidavit or renew the search. Additionally, based on the Agency's admission that it did not search one location at all for request 2016-2033, the Court granted Wisdom summary judgment on that issue and ordered Defendant to conduct a search.

         The Court next reviewed numerous redactions the Agency had made to released documents under Exemptions 5, 6, and 7(E). Briefly, the Court denied Defendant's use of Exemptions 5 and 7(E) because it had not provided enough detail from which the Court could assess whether the exemptions were appropriate. As to Exemption 6, the Court held that the Agency could redact names and personal information of other debtors and complainants as well as performance evaluations for trustees other than Gugino. The Court also directed Defendant to provide Gugino's performance evaluations for in camera review, after which it ordered supplemental briefing from the parties assessing the potential private and public interests implicated by release of those documents. See ECF No. 34. Believing it has now sufficiently complied with the Court's directives, the Agency renews its Motion for Summary Judgment.

         II. Legal Standard

         Summary 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 genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”). 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). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

         FOIA cases typically and appropriately are decided on motions for summary judgment. See Defenders of Wildlife v. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009); Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C. 2007). In FOIA cases, the agency bears the ultimate burden of proof. See DOJ v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989). The Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they describe “the documents and 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.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.'” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

         III. Analysis

         Accompanying its renewed Motion for Summary Judgment, Defendant has attached a declaration from Paul Bridenhagen and a revised Vaughn Index. Plaintiff opposes both the form and substance of this new Motion. Specifically, he raises four arguments: (1) the Agency is not permitted to file successive summary-judgment motions; (2) the new declaration is procedurally deficient; (3) Defendant's search remains inadequate; and (4) Exemptions 5 and 6 are inapplicable. (The Agency no longer invokes Exemption 7(E). See Bridenhagen Decl., ¶ 55.) The Court addresses each in turn.

         A. Multiple Motions and Bridenhagen Declaration

         The Court can swiftly dispose of Plaintiff's first two arguments. Wisdom contends that the Agency's Motion for Summary Judgment is “not supported by [Federal Rule of Civil Procedure] 56, . . . local rules, case law or orders of this Court.” Pl. Supp. Br. at 4. While successive motions may be inappropriate in certain contexts, the nature of FOIA cases lends itself to such filings. When an agency improperly withholds requested documents from public disclosure, district courts serve to provide “[a]ggrieved citizens . . . a speedy remedy.” EPA v. Mink, 410 U.S. 73, 79 (1973). That remedy is usually the outcome of an iterative motions process. In other words, a court's decision that the agency fell short of the mark in a mendable way often includes a directive that it go back and attempt to correct any errors - e.g., by conducting another search or by releasing more documents. See Am. Immigration, 21 F.Supp.3d at 67 (partially granting Defendant's successive motion for summary judgment); Stein v. DOJ, 197 F.Supp.3d 115, 117 (D.D.C. 2016) (same). In this case, that directive was explicit. The Order that accompanied the prior Opinion directed the parties to “meet, confer, and propose a further briefing schedule.” ECF No. 28 (January 13 Order). ...

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