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Bernegger v. Executive Office for United States Attorneys

United States District Court, District of Columbia

September 20, 2018

PETER BERNEGGER, Plaintiff,
v.
EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         Peter 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 in full.

         The 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.

         I. BACKGROUND

         Plaintiff 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. at *11-12.

         On 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).

         On 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.

         EOUSA 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).

         Bernegger 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.

         II. LEGAL STANDARD

         The 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)).

         FOIA 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).

         III. ANALYSIS

         Bernegger's 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.

         A. “Missing” Records

         Bernegger 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.

         To 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).

         Needless 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 “missing.”

         B. Adequacy ...


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