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Bagwell v. U.S. Department of Justice

United States District Court, District of Columbia

March 22, 2018

RYAN BAGWELL, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER, United States District Judge

         Ryan Bagwell, an alumnus of Pennsylvania State University, filed a request under the Freedom of Information Act (“FOIA”) with the Executive Office for United States Attorneys (“EOUSA”) seeking records related to investigations into allegations of child sexual abuse on the University's campus. The parties have now filed cross-motions for summary judgment concerning three aspects of EOUSA's response: (1) its search of email accounts in the U.S. Attorney's Office for the Middle District of Pennsylvania, which oversaw a criminal investigation into the allegations; (2) its referral of records to other agencies for review; and (3) its withholding of records under FOIA Exemptions 5 and 7(A). The Court concludes-for the second time in this case-that the Department of Justice has failed to carry its burden of detailing an adequate search. It also finds that the Department has improperly withheld a set of records that it referred to the Department of Education and has inadequately justified its withholding of a set of Pennsylvania state grand jury materials under Exemption 7(A). However, the Court will sustain all but one of the Department's withholdings under Exemption 5. The Court will, accordingly, grant and deny both motions in part.

         I. Background

         As this case has been here before, the Court will only briefly recount the relevant factual background. Both the U.S. Attorney's Office for the Middle District of Pennsylvania (the “U.S. Attorney's Office”) and the Pennsylvania Attorney General's Office oversaw criminal investigations into allegations of child sexual abuse by former Penn State assistant football coach Jerry Sandusky. In addition, former FBI Director Louis Freeh and his law firm were retained by Penn State's Board of Trustees to conduct an internal investigation into the Sandusky matter. Seeking material related to those investigations, in April 2014, Plaintiff Ryan Bagwell filed a FOIA request with EOUSA for “any and all records of investigations between November 1, 2011 and [April 30, 2014] that pertain to allegations of child sexual abuse that occurred on the campus of The Pennsylvania State University.” Compl. ¶ 5. When EOUSA failed to timely respond, Bagwell filed suit against EOUSA's parent agency, the Department of Justice.

         After the suit was filed, EOUSA produced 517 pages of records to Bagwell and withheld another 104 pages. The parties then filed cross-motions for summary judgment, with Bagwell challenging the adequacy of the Department's search and its withholding of documents. The Court concluded that the Department had not provided enough information to allow for resolution of the motions at that juncture. Bagwell v. U.S. Dep't of Justice, 2015 WL 9272836, at *1 (D.D.C. Dec. 18, 2015).

         As to Bagwell's challenge to the adequacy of the search, the Court identified two concerns it had regarding the search performed. First, it was unclear whether or how the Department had searched the U.S. Attorney's Office email system for responsive emails. Id. at *2. Second, even though former Director Freeh had made public remarks indicating that his firm had communicated with the U.S. Attorney's Office regarding the investigation, the Department's search had not uncovered any such communications or related documents. Id. Because the Department's supporting declarations failed to address these concerns, the Court was left “in substantial doubt as to the sufficiency of the search.” Id. Similarly, the Court held that the Department's Vaughn index and declarations were not adequately detailed to justify the withholdings it had made. Id. at *4-5. The Court therefore deferred resolution of the cross-motions and directed the Department to “conduct any necessary additional searches, and file a supplemental memorandum in support of its motion for summary judgment, including additional affidavits and a revised Vaughn index.” Id. at *5.

         Following that Order, the Department performed a second search, including one of the U.S. Attorney's Office email system. To conduct that search, the Department identified six staff positions that were most likely to have potentially responsive emails in their email accounts: the U.S. Attorney, the First Assistant U.S. Attorney, the Criminal Chief, the Deputy Criminal Chief, Assistant U.S. Attorney One, and Assistant U.S. Attorney Two. Second Simpson Decl. ¶ 11. It then searched these accounts for emails (and attachments) during the relevant time period containing four search terms: “Pennsylvania State University, ” “Child sexual abuse and Pennsylvania State University, ” “Sandusky, ” and “Freeh.” Id. ¶ 12. Upon completion of its search, the Department produced an additional set of documents to Bagwell, while also making further withholdings.

         After the second round of productions, the Department renewed its motion for summary judgment, filing supplemental declarations and Vaughn indices. See Def.'s Mem. P. & A. Supp. Renewed Mot. Summ. J. (“Def.'s MSJ”).[1] Bagwell filed a cross-motion for summary judgment, again challenging the adequacy of the search and the Department's withholdings. See Pl.'s Mem. P. & A. Opp'n Def.'s Mot. Summ. J. & Supp. Pl.'s Cross-Mot. Summ. J. (“Pl.'s MSJ”). The Court held a hearing on the cross-motions on February 28, 2018. Based on the arguments presented in the briefing and at the hearing, the Court will grant in part and deny in part both motions, as detailed below.

         II. Legal Standard

         Summary judgment is appropriately granted if the moving party shows that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). FOIA cases “typically and appropriately are decided on motions for summary judgment.” Def. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). The Court can award summary judgment to an agency if it “proves that it has fully discharged its obligations under FOIA, after the underlying facts and inferences to be drawn from them are construed in the light most favorable to the FOIA requester.” Tushnet v. ICE, 246 F.Supp.3d 422, 431 (D.D.C. 2017).

         The first such obligation an agency must fulfill is to conduct an adequate search for the requested records. See, e.g., Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). For a search to be adequate, an agency must show “beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (quotation omitted). In evaluating the adequacy of a search, the Court may rely on sufficiently detailed affidavits or declarations submitted by the agency that set forth the search terms and the type of search performed. See Valencia-Lucena, 180 F.3d at 326. Agency FOIA declarations carry “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) (quotation marks omitted).

         In addition, an agency must adequately justify any withholdings it makes under FOIA's exemptions from disclosure. Because FOIA “seeks ‘to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language, '” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975) (citation omitted), any exemption from disclosure is construed narrowly and the agency bears the burden of establishing that every withholding is justified. See, e.g., DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015).

         III. Analysis

         Bagwell levels three main challenges in his renewed motion for summary judgment. First, he once again challenges the adequacy of the Department's searches. Second, he contends that the Department's referral of a set of records to other agencies constitutes an unlawful withholding. And third, he challenges the Department's withholding of documents, primarily pursuant to Exemption 7(A) and Exemption 5.

         The Court finds that that the Department's search efforts were inadequate because the search terms used were facially under-inclusive and thereby not reasonably calculated to uncover all responsive materials. As to the referred records, the Court finds that the records referred to the Department of Education constitute improperly withheld records. Finally, the Court finds that the Department has failed to adequately justify the withholding of certain Pennsylvania state grand jury materials under Exemption 7(A) but that it has adequately supported most of its other withholdings.

         A. The adequacy of the search

          Bagwell claims the Department's search efforts are still inadequate, despite its supplemental searches and declarations. He does not dispute that the Department searched for responsive emails, as the Court requested, nor does he argue that more or different email accounts should have been searched. Rather, Bagwell points to three specific indications of an inadequate search.

         First, Bagwell claims that the Department produced only two emails with employees of former Director Freeh's law firm, which he argues is a “positive [indication] of overlooked materials.” Pl.'s MSJ at 9-10. He relies on Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999), for this proposition, but that case is inapposite. In Valencia-Lucena, the search was deemed inadequate because the government failed to search “all places it knew likely to turn up the information requested.” Id. at 327 (internal quotation marks omitted). By contrast, Bagwell does not identify any additional places the Department should have searched, such as other email accounts. Furthermore, based on tallying up the numbers provided in the second declaration from D. Brian Simpson, an Assistant U.S. Attorney for the Middle District of Pennsylvania, the search term “Freeh” turned up over 300 emails across the six accounts searched. See Second Simpson Decl. ¶ 17. Given these results, the Court is satisfied that any responsive email between employees of Freeh's law firm and the U.S. Attorney's Office relating to the investigation would have been uncovered by the search term “Freeh, ” making it adequate in this regard.

         Bagwell next contends the four search terms used to conduct the search were not reasonably selected to capture responsive documents.[2] Pl.'s MSJ at 9. Bagwell argues that the search term “Pennsylvania State University” alone is insufficient because it would not pick up documents that contained only “PSU” or “Penn State, ” names commonly used to refer to the University. Id. The Court agrees. As Bagwell notes, in common conversation the University is more likely to be referred to as “Penn State” or “PSU, ” making it reasonable to conclude that emails concerning the various investigations would use one of these two terms rather than the full name of the University. Indeed, in its own pleadings and Vaughn Index, the Department itself uses the terms “PSU” and “Penn State, ” rather than the University's full name. At the hearing, counsel for the Department was unable to provide a sufficient explanation for why the Department used the full name of the University alone as a search term. Because it is likely that emails concerning the investigation would use “PSU” or “Penn State” rather than the full name of the University, the Department's search was not reasonably calculated to find all responsive emails. Cf. Tushnet, 246 F.Supp.3d at 434-35 (expressing concern over selection of terms that was “facially lacking, with some [searches] not even including terms explicitly called out in [the] request.”).

         Given the facial under-inclusivity of the term “Pennsylvania Search University, ” the Court finds that the Department has yet to show “beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Ancient Coin Collectors Guild, 641 F.3d at 514 (quotation marks omitted). The Court will therefore require the Department to conduct a further adequate search of the U.S. Attorney's Office emails. However, before doing so, the Court will order the parties to meet and confer within fourteen days and engage in a good faith effort to arrive at a reasonably limited set of additional search terms that rectify the under-inclusivity of the “Pennsylvania State University” search term without being too over-inclusive.[3]If the parties cannot reach agreement, they shall file a joint submission setting forth their respective terms and their positions on all ...


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