MEMORANDUM OPINION AND ORDER
Amit
P. Mehta, United States District Judge
I.
Plaintiff
Victor Rodriguez filed this pro se action pursuant to the
Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, against the Criminal Division of the Department
of Justice (“Criminal Division”), the Federal
Bureau of Investigation (“FBI”), and the Office
of Information Policy of the Department of Justice
(“OIP”). Defendant Criminal Division renews its
Motion for Summary Judgment. So, too, does the Executive
Office for U.S. Attorneys (“EOUSA”) because, even
though it is not a named defendant, it withheld requested
records. The court grants these motions, finding that the
Criminal Division conducted a reasonable search, and that
both the Criminal Division and EOUSA properly withheld
documents and have demonstrated that non-exempt information
could not be segregated.[1]
II.
In a
prior order (“the Order”), the court ruled that
the Criminal Division's declaration in support of summary
judgment was “not sufficiently detailed to permit the
court” to find that its search was adequate. Memorandum
Opinion and Order, ECF No. 31 [hereinafter Order], at
5.[2]The court found three deficiencies: (1) The
Criminal Division did not explain why it forwarded a search
request only to the Capital Case Section (“CCS”)
of the Criminal Division; (2) it did not clarify whether
records were requested from the office that prosecuted
Plaintiff, the U.S. Attorney's Office for the Eastern
District of Pennsylvania; and (3) it did not set forth the
search terms used by CCS. Id. at 5-6. For these
reasons, the court denied Defendants' Motions for Summary
Judgment without prejudice. Id. at 7.
On
April 9, 2018, Defendant EOUSA renewed its motion for summary
judgment. See EOUSA's Mot., ECF No. 35.
Defendant Criminal Division filed its renewed motion on May
24, 2018. See Criminal Division's Notice of
Filing, ECF No. 40 [hereinafter Defs.' Mot.]. Plaintiff
filed a reply to both motions on July 26, 2018. See
Reply, ECF No. 47 [hereinafter Pl.'s Reply].
III.
Having
cured the deficiencies identified in the Order, the court now
finds the Criminal Division conducted an appropriate search
for responsive information.[3] An agency is entitled to summary
judgment if it “show[s] beyond material doubt that it
has conducted a search reasonably calculated to uncover all
relevant documents.” Aguiar v. Drug Enf't
Admin., 865 F.3d 730, 738 (D.C. Cir. 2017) (quoting
Morley v. CIA, 508 F.3D 1108, 1114 (D.C. Cir.
2007)). The Criminal Division's declaration in support of
its renewed motion meets this standard. First, the court is
satisfied with the Criminal Division's decision to send
the search request to CCS, as well as its decision after the
Order to send a request to the Organized Crime and Gangs
Section of the Criminal Division (“OCGS”).
See Defs.' Mot., Decl. of Peter C. Sprung, ECF
No. 40-1 [hereinafter Sprung Decl.], ¶¶ 7-10,
15-19. In his FOIA request, Plaintiff asked the Criminal
Division for “[a]ll records maintain[ed] in your office
from (Victor Rodriguez) Criminal Case (98-362-12) . . .
(Eastern District of Pennsylvania) Pertaining to the (Death
Pen[a]lty Case).” Id. ¶ 7; Order at 2.
Because Plaintiff sought information about his death penalty
case, the Criminal Division contacted CCS, a unit within the
Division that reviews requests made by U.S. Attorney's
offices to pursue the death penalty and makes recommendations
to the Attorney General on whether to authorize a capital
case. Sprung Decl. ¶ 9. Additionally, after the Order,
the Criminal Division contacted the Assistant United States
Attorney in the Eastern District of Pennsylvania who led
Plaintiff's prosecution to ask whether the prosecution
team had communicated with any other components of the
Criminal Division, and the attorney advised that he had
communicated with OCGS. Id. ¶ 15. The Criminal
Division thereafter directed OCGS to conduct a search.
Id. ¶ 17. In sum, Plaintiff asked the Criminal
Division for documents related to his case; the Criminal
Division then asked its sub-components that did work on
Plaintiff's prosecution, as identified by the face of the
request and the prosecutor who worked on the case, to search
for such documents. These efforts satisfy the court's
prior concern about why the Criminal Division sent a search
request only to CCS. See Order at 5.
Relatedly,
the court is satisfied with the Criminal Division's
explanation as to why it did not ask the U.S. Attorney's
Office for the Eastern District of Pennsylvania to search for
responsive documents. Id. at 5 n.3. Plaintiff asked
the Criminal Division for records “in your
office” pertaining to the capital aspect of his case.
Thus, on its face, the request does not reach the prosecuting
U.S. Attorney's Office, as that office is not a section
within the Criminal Division's “office.”
Further, “the Criminal Division does not have custody
or control over [local U.S. Attorney's offices']
records.” Sprung Decl. ¶ 13. Plaintiff sent his
request to the Criminal Division, so it was proper to limit
its search to documents within its control.
Lastly,
the Criminal Division has included in its present declaration
a description of the search methodology and terms that were
absent in the first declaration. CCS looked for relevant
documents by searching Plaintiff's name in its Capital
Case Tracking System, and OCGS did the same within its data
system. Id. ¶¶ 11, 18. The searches
produced a hit, indicating that the units had responsive
documents in its files. Id. CCS then searched its
files, and OCGS ordered files from storage based on the
information produced by the hit. Id. ¶¶
11-12, 18. The Criminal Division thus has remedied the
shortcomings of its search description that led the court to
initially deny summary judgment.
IV.
The
court is also satisfied that both the Criminal Division and
EOUSA have properly withheld documents. To begin,
Defendants' Vaughn indexes, coupled with
proffered declarations, sufficiently provide the court a
reasonable basis to evaluate the asserted withholdings.
See Delaney, Midgail & Young, Chartered v. IRS,
826 F.2d 124, 128 (D.C. Cir. 1987). Based on the court's
assessment of those materials, Defendants appropriately
withheld all documents based on FOIA Exemption 5.
See Defs.' First Mot., ECF No. 23 [hereinafter
Defs.' First Mot.], First Sprung Decl., ECF No. 23-1
[hereinafter First Sprung Decl.], at 12-38; see also
Defs.' First Mot., First Jolly Decl., ECF No. 23-2
[hereinafter First Jolly Decl.], at 15-22, 27; see
also Defs.' Mot., Revised Vaughn Index, ECF No. 40-2
[hereinafter Revised Vaughn Index], at 29-57.
Exemption
5 allows agencies to withhold “inter-agency or
intra-agency memorandums or letters that would not be
available by law to a party . . . in litigation.” 5
U.S.C. § 552(b)(5). Typically, this exemption protects
documents under the deliberative process, attorney
work-product, and attorney-client privileges. See Coastal
States Gas Corp. v. Dep't of Energy, 617 F.2d 854,
862 (D.C. Cir. 1980). The deliberative process privilege
protects documents that are “predecisional” and
“deliberative.” Huntington v. United States
Dep't of Commerce, 2018 WL 4600760, at *1 (D.C. Cir.
Sept. 11, 2018). The attorney work-product privilege protects
attorney's work that is done in anticipation of
litigation. See Coastal States, 617 F.2d at 864-65.
The
very nature of Plaintiff's request implicates Exemption
5. Plaintiff asked the Criminal Division to disclose records
pertaining to the death penalty aspect of his prosecution.
The Criminal Division's role in Plaintiff's
prosecution was two-fold. It reviewed the request and made a
recommendation to the Attorney General about seeking the
death penalty, and it evaluated and decided whether to
authorize racketeering charges. To carry out those functions,
the Criminal Division engaged in deliberations, both within
the Division and with the local federal prosecutors, about
final charging decisions. Sprung Decl. ¶¶ 8-9, 16.
Nearly all the documents responsive to Plaintiff's FOIA
request reflect the agency's decision-making and
therefore easily fall under the deliberative process
privilege.[4] Two documents-CRM-0254 and CRM-0255-are
not pre-decisional material, but rather post-decisional
advice from OCGS to the U.S. Attorney's Office after
OCGS's review. See Revised Vaughn Index at
44-45. Those documents are covered by the attorney
work-product privilege because they were prepared by an OCGS
attorney in anticipation of ...