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Corley v. Sessions

United States District Court, District of Columbia

November 16, 2017

ROYCE CORLEY, Plaintiff,
v.
JEFF SESSIONS, [1] et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          EMMET G. SULLIVAN, UNITED STATES DISTRICT JUDGE.

         Plaintiff, appearing pro se, sues under the Freedom of Information Act (“FOIA”) to compel “the production of agency records concerning [himself] and Sex Trafficking prosecutions, ” maintained by the Federal Bureau of Investigation and the Executive Office for United States Attorneys (“EOUSA”). Compl. ¶ 1. In March 2016, the Court granted partial summary judgment to the Department of Justice (“DOJ”), leaving unresolved the question of segregability with respect to EOUSA's records.[2] See Mem. Op. and Order [Dkt. # 29]. Pending before the Court is Defendants' Renewed Motion for Summary Judgment [Dkt. # 35]. Plaintiff has filed an Opposition and Cross-Motion for Partial Summary Judgment and Leave to Take Discovery [Dkt. ## 37, 38]. Based mostly on its independent examination of EOUSA's supplemental Vaughn index, the Court finds that (1) EOUSA's vague descriptions of five withheld documents preclude a grant of summary judgment as to those records, (2) EOUSA has released all other reasonably segregable records, and (3) plaintiff's ground for summary judgment is moot, and discovery is unnecessary. Hence, for the reasons explained more fully below, defendant's motion will be granted in part and denied in part, and plaintiff's motion will be denied.

         1. Defendant's Motion for Summary Judgment

         EOUSA released 151 pages to plaintiff, 58 of which contained redacted material, and it withheld 265 pages completely. See Supp. Decl. of Princina Stone ¶ 8 [Dkt. # 35-1]. The Court could not conclude from EOUSA's initial declaration and Vaughn index that all reasonably segregable records were released and thus denied summary judgment in part. See Mem. Op. at 24-25. In the pending motion, defendant asserts that EOUSA's supplemental declaration and Vaughn index [Dkt. # 32-1] support summary judgment on the remaining segregability question. The Court agrees as to all but five documents withheld completely as attorney work-product.

         EOUSA's declarant “performed a segregability review of all 265 pages that were withheld in full and identified on the Supplemental Vaughn Index [by] Bates Numbers[.]” Supp. Stone Decl. ¶ 12 (listing pages). The withheld material “include[s], but is not limited to, witness statements, prosecuting attorney's legal research, legal theories, hand-written notes, draft pleadings, [and] written communications among law enforcement personnel, attorneys within the District Attorney's Office New York County and USAO/SDNY in preparation for the criminal prosecution of plaintiff.” Id. ¶ 14. The withholdings are pursuant to FOIA exemptions 3, 5, 7(C), and 7(D), id. ¶ 13, which the Court has already found to be proper justifications for withholding the same type of information.[3] See Mem. Op. at 21-24.

         A. Third-Party Records

         Plaintiff counters that “EOUSA should release . . . non-exempt portions of [certain Bates-numbered] records they seek to withhold based on privacy concerns since the identity of the speaker was already redacted[.]” Opp'n at 6-7 [Dkt. # 37] (listing Bates 00030-00038; 00175-00184; 00185; 00186-00188, 00211-00215; 00189-00190; 00210; 00216-00223; 00229-00237; 00311). But the Court has carefully reviewed the supplemental Vaughn index and finds that it adequately describes the information contained in the pages plaintiff has listed and explains why such information is fully protected by the claimed exemption(s). What plaintiff fails to acknowledge is that the privacy exemption EOUSA applied to the third-party information was invoked in conjunction with other exemptions that covered the remaining information-namely, exemption 3 (pursuant to the Child Victim and Child Witnesses' Rights Statute); exemption 5 (attorney work-product); and exemption 7(D) (confidential source information). See Mem. Op. at 11-13, 21-24. Moreover, exemption 7(C) alone protects the withheld “photo array” of third-party individuals, Bates Numbers 00216-00223, and records “belonging to” third-party individuals, Bates Numbers 00229-00237, and 00311. See Mem. Op. at 14-18, 22. And the Court has already determined that plaintiff has shown no overriding public interest to compel disclosure of the otherwise exempt information. See Id. at 16-17.

         An agency may withhold complete records where “the exempt portions are ‘inextricably intertwined with [non]exempt portions, ” Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002), and “the excision of exempt information would impose significant costs on the agency and produce an edited document with little informational value, ” Mays v. Drug Enf't Admin., 234 F.3d 1324, 1327 (D.C. Cir. 2000) (citing 5 U.S.C. § 552(b); Neufeld v. IRS, 646 F.2d 661, 666 (D.C. Cir. 1981) (internal quotation marks omitted)). EOUSA's declarant has stated as much. See Stone Decl. ¶ 16. In addition, where it could feasibly do so, EOUSA redacted third-party information and then released responsive records. See Supp. Vaughn Index at 1-11 (explaining redaction of information for personal privacy reasons). The Court is now satisfied that EOUSA has released all reasonably segregable records containing third-party information and, as a result, will grant summary judgment to defendant on this issue.

         B. Attorney Work-Product

         FOIA Exemption 5 applies to “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). Withholdings are restricted to “those documents, and only those documents, normally privileged in the civil discovery context, ” such as attorney work-product, deliberative process material, and attorney-client communications. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).

         EOUSA has invoked the attorney work-product privilege (in a few instances, in conjunction with the deliberative process privilege). EOUSA's declarant states correctly that “[t]here is no requirement to segregate records that are protected under the attorney-work product privilege of Exemption 5[, ]” Supp. Stone Decl. ¶ 15, which the supplemental Vaughn index reveals to be a sizable portion of the withheld material. See Judicial Watch, Inc. v. Dep't of Justice, 432 F.3d 366, 371 (D.C. Cir. 2005) (“If a document is fully protected as work product, then segregability is not required.”). “The attorney work-product [prong of Exemption 5] extends to ‘documents and tangible things that are prepared in anticipation of litigation or for trial' by an attorney.” Ellis v. United States Dep't of Justice, 110 F.Supp.3d 99, 108 (D.D.C. 2015), aff'd, No. 15-5198, 2016 WL 3544816 (D.C. Cir. June 13, 2016) (quoting Fed.R.Civ.P. 26(b)(3)(A) (other citation omitted; bracket in original)). The work-product privilege encompasses documents prepared “by or for another party or its representative (including the other party's attorney, consultant . . . or agent, ” so long as they were prepared “in anticipation of litigation or for trial[.]” Fed.R.Civ.P. 26(b)(3)(A). See FTC v. Boehringer Ingelheim Pharm., Inc., 778 F.3d 142, 149 (D.C. Cir. 2015) (“The work product protection is broader than the attorney-client privilege in that it is not restricted solely to confidential communications between an attorney and client. . . . It is narrower, however, insofar as the doctrine protects only work performed in anticipation of litigation or for trial.”) (citation omitted); Shapiro v. U.S. Dep't of Justice, 969 F.Supp.2d 18, 28 (D.D.C. 2013) (“The work-product doctrine can apply to preparatory work performed not only by attorneys, but also, in some circumstances by nonlawyers[.]”) (citing United States v. Nobles, 422 U.S. 225, 238-239 (1975)). And “the Supreme Court has made clear [that] the doctrine should be interpreted broadly and held largely inviolate[.]” Judicial Watch, Inc. v. Dep't of Justice, 432 F.3d 366, 369 (D.C. Cir. 2005) (quoting at length Hickman v. Taylor, 329 U.S. 495, 510-11 (1947)). However,

in order for the Government to discharge its evidentiary burden [under FOIA Exemption 5], it must (1) provide a description of the nature of and contents of the withheld document, (2) identify the document's author or origin, (3) note the circumstances that surround the document's creation, and (4) provide some indication of the type of litigation for which the document's use is at least foreseeable.

Ellis, 110 F.Supp.3d at 108 (citing In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998). And

[w]hen considering whether a document is prepared “in anticipation of litigation, ” [the D.C. Circuit] employs a “because of” test, inquiring “whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” . . . Where a document would have been created “in ...

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