United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
Bernegger was convicted of mail and bank fraud in 2009 in the
U.S. District Court for the Northern District of Mississippi.
Since then, he has filed a number of lawsuits against
individuals involved in his criminal case, alleging that they
engaged in various forms of misconduct. In support of this
effort, Bernegger submitted a Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, and Privacy Act, 5
U.S.C. § 552a, request to the Executive Office for
United States Attorneys (“EOUSA”), seeking
electronic communications to or from three Assistant United
States Attorneys (“AUSAs”) or “their legal
secretaries” between the dates of March 1, 2007 and
August 15, 2016, containing any reference to him, his case,
or any of a list of individuals involved in his case. Dkt. 1;
Dkt. 11; Dkt. 22-2 at 2-4 (Def.'s SUMF ¶ 6). When
EOUSA failed to release the records he sought, Bernegger
filed this suit to compel it to do so. Although EOUSA
eventually released hundreds of responsive records in full or
with redactions, Bernegger remains unsatisfied and asks the
Court to compel EOUSA to release all of the records he sought
case is now before the Court on the parties'
cross-motions for summary judgment and Bernegger's motion
for discovery. For the reasons explained below, the Court
will GRANT in part and DENY
in part EOUSA's motion for summary judgment, Dkt. 22,
will DENY Bernegger's motion for partial
summary judgment, Dkt. 29, and will DENY
Bernegger's motion for discovery, Dkt. 30.
Peter Bernegger was convicted in 2009 of mail and bank fraud.
United States v. Bernegger, 661 F.3d 232, 234-36
(5th Cir. 2011); Bernegger v. United States, No.
1:07CR176, 2015 WL 1013857, at *1 (N.D. Miss. Mar. 9, 2015).
After he was convicted, Bernegger filed multiple lawsuits
seeking to expose the “corrupt[ion], ”
“misconduct, ” “fraud, ” and
“lies” of nearly 20 people involved in his
criminal case, including judges, judicial staff, state
officials, and prosecutors. In re Bernegger, No.
3:15CV182, 2015 WL 8347587, at *8-10 (N.D. Miss. Dec. 8,
2018). Bernegger's actions reached the point that, in
2015, a district court in the Northern District of
Mississippi determined that it was necessary to “impose
a sanction designed to curb Mr. Bernegger's penchant for
abusing judicial process by filing frivolous and malicious
pleadings, motions, and communications with the court,
” and thus required that he submit any future cases he
wishes to file to the Chief Judge for screening. Id.
August 13, 2016, Bernegger submitted a FOIA and Privacy Act
request to EOUSA, seeking “all emails and/or other
electronic communications of AUSA Robert J. Mims, AUSA Clyde
McGee, AUSA David Sanders . . . and of their legal
secretaries” that referred to him, his criminal case or
case number, or a list of lawyers, court personnel, and
others. Dkt. 22-3 at 27- 28 (Stone Decl. Ex. B). He
specified, moreover, that his request was intended to cover
the period from March 1, 2007 through August 15, 2016.
Id. at 28 (Stone Decl. Ex. B). Bernegger later
expanded his request to include emails to or from a probation
officer in the Northern District of Mississippi. Id.
at 32 (Stone Decl. Ex. C). On November 1, EOUSA sent
Bernegger a letter acknowledging receipt of his request and
informing him that his request, like all others, would be
processed on a “first in, first out” basis.
Id. at 38 (Stone Decl. Ex. D). On March 13, 2017,
EOUSA sent Bernegger a second letter-this time informing him
that “[t]he FOIA point of contact for the [U.S.
Attorney's Office for the] Northern District of
Missouri” had begun the process of searching for
responsive records and “estimate[d] [that]
approximately 1, 375 pages of potentially responsive records
[had] been located.” Id. at 41 (Stone Decl.
Ex. E). The letter also asked that Bernegger agree to the
estimated duplication fee associated with his request.
Id. at 43 (Stone Decl. Ex. E).
March 29, 2017, Bernegger filed this suit to compel EOUSA to
release all records responsive to his request. See
Dkt. 1. Between August 2017 and December 2017, EOUSA released
to Bernegger 72 pages of records in full and 88 pages of
records in part, withholding 130 pages of records in full.
Dkt. 22-3 at 4 (Stone Decl. ¶¶ 12, 14-15). EOUSA
also referred certain records to the Internal Revenue Service
(“IRS”) and the Federal Bureau of Investigation
(“FBI”) to review, “since the records
originated with those agencies.” Id. at 4
(Stone Decl. ¶ 12). The IRS released all the records
that were referred to it, id. at 50 (Stone Decl. Ex.
J), while the FBI released 8 pages in full, 11 pages in part,
and withheld in full 77 pages of records, Dkt. 22-5 at 2-3
(Hardy Decl. ¶¶ 4, 8). Bernegger does not challenge
the FBI's decision to withhold any of these records in
whole or in part, nor does he claim that the IRS has failed
to release any responsive records. Dkt. 31 at 8.
has now moved for summary judgment, submitting that it has
conducted an adequate search and that its withholdings and
redactions were justified under FOIA and the Privacy Act.
Dkt. 22. EOUSA supports its motion with the declarations of
Princina Stone, an Attorney-Advisor with the FOIA staff of
EOUSA, Dkt. 22-3 at 1 (Stone Decl. ¶ 1); Brenda Gill,
the FOIA Point of Contact for the United States
Attorney's Office for the Northern District of
Mississippi during the time Bernegger submitted his FOIA
request, Dkt. 22-4 at 1 (Gill Decl. ¶ 1); and David
Hardy, Section Chief of the Record/Information Dissemination
Section of the Records Management Division with the FBI, Dkt.
22-5 at 1 (Hardy Decl. ¶ 1).
opposes EOUSA's motion on numerous grounds. He challenges
the adequacy of EOUSA's search and all of its
withholdings and redactions, arguing-among other things- that
there is a discrepancy between the number of pages of records
that it originally found and the number of pages it has
subsequently accounted for; that EOUSA's declarations are
not based on personal knowledge and are thus invalid; that it
failed to conduct an adequate search and improperly invoked
various FOIA exemptions; and that the government's
“bad faith” precludes EOUSA from withholding any
responsive records in whole or in part. Dkt. 31. Moreover,
relying on the same arguments, Bernegger argues that he is
entitled to the entry of “partial summary
judgment” in his favor, Dkt. 29, or, in the
alternative, to discovery, Dkt. 30.
Freedom of Information Act is premised on the notion that
“an informed citizenry is “vital to the
functioning of a democratic society . . . [and] needed to
check against corruption and to hold the governors
accountable to the governed.” NLRB v. Robbins Tire
& Rubber Co., 437 U.S. 214, 242 (1978). The Act
embodies a “general philosophy of full agency
disclosure.” U.S. Dep't of Def. v. Fed. Labor
Relations Auth., 510 U.S. 487, 494 (1994) (quoting
Dep't of Air Force v. Rose, 425 U.S. 352, 360
(1976)). It thus mandates that an agency disclose records on
request unless they fall within one of nine exemptions.
“These exemptions are ‘explicitly made
exclusive' and must be ‘narrowly
construed.'” Milner v. Dep't of Navy,
562 U.S. 562, 565 (2011) (quoting EPA v. Mink, 410
U.S. 73, 79 (1973), and FBI v. Abramson, 456 U.S.
615, 630 (1982)).
cases are typically resolved on motions for summary judgment
under Federal Rule of Civil Procedure 56. See Beltranena
v. U.S. Dep't of State, 821 F.Supp.2d 167, 175
(D.D.C. 2011). To prevail on a summary judgment motion, the
moving party must demonstrate that there are no genuine
issues of material fact and that he or she is entitled to
judgment as a matter of law. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). In a FOIA action,
the agency may meet its burden by submitting
“relatively detailed and non-conclusory”
affidavits or declarations, SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and an index
of the information withheld, Vaughn v. Rosen, 484
F.2d 820, 827-28 (D.C. Cir. 1973); Summers v. Dep't
of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). An
agency “is entitled to summary judgment if no material
facts are in dispute and if it demonstrates ‘that each
document that falls within the class requested either has
been produced . . . or is wholly exempt from the [FOIA's]
inspection requirements.'” Students Against
Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C.
Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352
(D.C. Cir. 1978)). The Court reviews the agency's
decision de novo, and the agency bears the burden of
sustaining its action. 5 U.S.C. § 552(a)(4)(B).
principal contentions fall into four categories: First, he
claims that EOUSA's own estimation of the number of pages
of potentially responsive records shows that it has failed to
release hundreds of pages of records. Second, he argues that
neither of the declarations that EOUSA relies upon in its
motion were based on personal knowledge, and thus neither can
support the entry of summary judgment. Third, he contends
that EOUSA's search for responsive records was inadequate
in various respects. Fourth, he challenges EOUSA's
reliance on the asserted FOIA exemptions and argues that the
government's “bad faith” vitiates any defense
to release of all of the records sought in his FOIA request.
The Court will consider each set of arguments in turn.
first argues that he is entitled to the release of 540
records that were not released, listed in EOUSA's
Vaughn index, or otherwise identified as exempt from
disclosure. Dkt. 31 at 9-12. He apparently derives this
number of “missing” records by starting with the
assertion in EOUSA's March 13, 2017 letter, in which it
asserted that the FOIA “point of contact” for the
U.S. Attorney's Office in the Northern District of
Mississippi “estimate[d]” that
“approximately 1, 375 pages of potentially responsive
records [had] been located.” Dkt. 22-3 at 41 (Stone
Decl. Ex. E). Bernegger then subtracted from 1, 375 the
number of pages of records that EOUSA eventually released,
identified in its Vaughn index, or identified as
duplicates, and arrived at the conclusion that 540
“records” are “missing.” See
Dkt. 31 at 9-10. The Court is unpersuaded.
start, EOUSA's March 13, 2017 letter never states that
the U.S. Attorney's Office had identified 1, 375
responsive records. Rather, it merely
“estimate[d]” that it had located 1, 375
“pages”-not records-of “potentially
responsive”-not responsive-materials. Dkt. 22-3 at 41
(Stone Decl. Ex. E). Brenda Gill, the FOIA contact for the
U.S. Attorney's Office in the Northern District of
Mississippi, explains in her supplemental declaration that
she originally searched for “all
communications” contained in Bernegger's file and
that she based her “estimate” of
“potentially responsive” materials, id.
(Stone Decl. Ex. E), on that overly expansive search. Dkt.
32-2 at 1-2 (Supp. Gill Decl. ¶¶ 2-5) (emphasis
added). The scope of her search, and the number of
potentially responsive pages, was narrowed when “it was
[subsequently] determined that [Bernegger's]
request” did not include “all
communications” in his file. Id. at 5 (Supp.
Gill Decl. ¶ 5).
to say, an estimate does not create an entitlement to that
number of pages of records. EOUSA was required to release or
lawfully withhold only those records within the scope of
Bernegger's request. The Court is convinced by the
uncontroverted evidence that it did so and that the
discrepancy between EOUSA's initial estimation and its
ultimate response is not the product of bad faith and is not
evidence that any of the requested records are