Am. First Legal Found. v. DOJ, No. 22-1427, 2025 WL 2758222 (D.D.C. Sept. 26, 2025) (Contreras, J.)

Am. First Legal Found. v. DOJ, No. 22-1427, 2025 WL 2758222 (D.D.C. Sept. 26, 2025) (Contreras, J.)

Re: Request for records concerning individual who pled guilty to arson resulting in death during 2020 Minneapolis protests

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment

• Procedural Requirements, “Agency Records”:  “The Court finds that the [Presentence Investigation Report (“PSR”)] is an agency record subject to disclosure under FOIA.”  “First, the Bureau of Prisons . . . , a part of DOJ, acknowledges that it receives and uses PSRs for multiple purposes post-sentencing.”  “In fact, once a defendant is sentenced, ‘a copy of the presentence report is typically transmitted to the Bureau of Prisons, where it may be used in determining a defendant’s classification as an inmate, . . . choosing an appropriate treatment program, or deciding eligibility for various privileges.’”  “Additionally, the PSR is transmitted to the U.S. Parole Commission pursuant to 18 U.S.C. § 4205(e) of the Parole Commission and Reorganization Act of 1976 (‘Parole Act’), further embedding the document into the framework of executive branch decision-making.”  “In that context, the Parole Commission must consider the PSR under 18 U.S.C. § 4207(3) and is statutorily obligated to provide the prisoner ‘reasonable access’ to the report at least 30 days before a parole hearing, subject only to limited exemptions for sensitive information under § 4208(b) and (c).”  “This consistent institutional usage underscores that PSRs fall within FOIA’s scope.”  “The fact that BOP utilizes PSRs for core administrative functions demonstrates that they are not merely judicial records held temporarily; they are substantively and operationally integrated into DOJ’s responsibilities.”  “Here, the PSR was referenced explicitly and repeatedly in the corresponding publicly filed sentencing memorandum.”  “Additionally, the BOP’s own guidance explicitly acknowledges that PSRs fall within the scope of FOIA.”  “This acknowledgment makes clear that PSRs are considered agency records subject to FOIA, albeit with limitations on who may access them and under what circumstances that are not at issue here.”  “In light of this, at least some of the remaining undisclosed portions should be made available, as there is no justification for withholding material that is neither confidential nor exempt under FOIA.”  “DOJ’s argument that the PSR is sealed is legally insufficient without the production of a valid and specific sealing order.”
   
• Exemption 5, Deliberative Process Privilege:  The court relates that “DOJ argues that WIF Doc 2 was connected to a decision-making process and was properly withheld under the deliberative process privilege.” “DOJ maintains that the document concerns internal legal strategies and sentencing recommendations, which courts have consistently found to be protected.”  “Specifically, DOJ contends that ‘[h]arm would be caused under deliberative process to AUSAs in carrying out DOJ’s mission and government employee[s’] ability to have frank discussion on pre-decisional matters.’”  “The Court concludes that DOJ has the stronger argument.” “While [plaintiff] contends that the deliberative process privilege is inapplicable because WIF Doc 2 allegedly reflects a final agency position, DOJ has sufficiently demonstrated that the document remains both predecisional and deliberative.”  “Courts have consistently held that draft documents and internal memoranda reflecting recommendations or legal strategies prior to a final agency decision fall squarely within the scope of the deliberative process privilege.” “WIF Doc 2 includes the AUSA’s assessment of the seriousness of the charge, [the subject’s]  history, and the potential strength or weakness of sentencing recommendations, and disclosing it would reveal the USAO’s internal reasoning behind the sentencing recommendation.”  “This satisfies both prongs of the deliberative process privilege:  that a document is both predecisional and deliberative.”  “Further, [plaintiff’s] argument that the deliberative process privilege should yield to a public interest in exposing government misconduct is unconvincing.”  “While courts recognize a limited exception to FOIA Exemption 5 in cases of serious misconduct, this exception requires more than speculation.”  “Here, [plaintiff] relies largely on generalized references in the Sentencing Memorandum regarding [the subject’s] motivations for participating in protests.”  “There is no evidence that race or political ideology explicitly or improperly influenced the Government’s sentencing recommendation.”  “Such speculative inference fails to carry [plaintiff’s] burden.” “Additionally, [plaintiff’s] invocation of the Equal Protection Clause and U.S. Sentencing Guidelines Manual § 5H1.10 fails to overcome the deference courts afford to prosecutorial discretion and internal deliberations.”  “Courts are reluctant to allow FOIA to be used as a backdoor for speculative fishing expeditions into prosecutorial motive, and this Court is cautious about the potential of that reality in this action.”
   
• Exemption 5, Attorney Work-Product Privilege: The court relates that “DOJ also relies on the attorney work-product privilege as a basis for withholding WIF Doc 2 under Exemption 5.”  “As an initial matter, [plaintiff] argues that the contested documents should be produced because, in its initial motion, DOJ inadvertently invoked the attorney-client privilege instead of the attorney work-product privilege.”  “[Plaintiff] argues that this misstatement constitutes a waiver or forfeiture of the work-product privilege because DOJ did not explicitly identify that privilege in its opening brief.”  “However, DOJ clearly asserted the work-product privilege in [its] declaration, which accompanied the motion and clearly set forth the agency’s positions providing the evidentiary basis for withholding.”  “Courts in this Circuit have made clear that such human errors do not amount to waiver where the correct privilege is otherwise asserted in the record.”  “The Court finds that DOJ properly invoked the work-product privilege under FOIA Exemption 5.”  “DOJ has demonstrated that WIF Doc 2 was prepared by line prosecutors in the course of a pending criminal prosecution and thus falls squarely within the work-product doctrine.”
   
• Exemption 6; Exemption 7(C):  The court finds that, “[h]ere, WIF Doc 2 includes DOJ’s internal reasoning for its sentencing recommendation beyond what was disclosed in the Government’s Sentencing Memorandum . . . and attorney work product containing intimate information and draft materials.”  “The release of such data could result in harassment or harm to [the subject] and subject him to unwarranted public stigma because it constitutes ‘an unwarranted invasion of [his] personal privacy.’”  “WIF Doc 2 contains ‘more intimate details’ about [the subject], and ‘[t]here is no additional information to be revealed to the public that would assist in understanding the workings of the federal government by releasing’ the redactions made to this document.”  The court relates that “[plaintiff] contends that DOJ’s Sentencing Memorandum suggests that it improperly considered race and political motivations in recommending a lighter sentence for [the subject], raising serious concerns of misconduct.” The court finds that “[plaintiff] provides no evidence of the claimed government misconduct.”  “[Plaintiff’s] claims are conclusory and are unsupported by the record.”  “[Plaintiff] offers no concrete facts or independent corroboration to substantiate its assertions of bias or misconduct within DOJ’s sentencing recommendations.” “Given the absence of evidence indicating misconduct and the substantial privacy interests at stake, the balance weighs decisively against disclosure.”  “[The subject] retains a strong interest in avoiding unwarranted public exposure, and the speculative public interest cited by [plaintiff] does not meet the high bar necessary to override that interest.”
   
• Litigation Considerations, Evidentiary Showing, Foreseeable Harm Showing:  Regarding the information withheld pursuant to the Deliberative Process Privilege, the court finds that “DOJ has done more than invoke generic concerns or offer conclusory statements.”  “First, it has provided a detailed and context-specific showing of how the disclosure of the withheld materials, namely draft sentencing recommendations and internal communications, would chill future deliberations and inhibit candor among prosecutors.”  “DOJ’s declarations also identify the deliberative character of the redacted materials, which include predecisional legal impressions by an AUSA regarding sentencing, and explain how disclosure would deter similar forthright deliberations in future cases.”  “DOJ expressly details the impact of releasing non-final internal legal recommendations, including the chilling effect on honest communication and concern over misinterpretation by the public.”
  
  Regarding the information withheld pursuant to the attorney work-product privilege, the court holds that “in the context of attorney-client and work-product privileges, ‘for which the risk of harm through disclosure is more self-evident and the potential for agency overuse is attenuated,’ an agency may not be required to submit as detailed a showing to meet the foreseeable harm standard.”  “[The] Court agrees.”  “While FOIA requires agencies to articulate a ‘non-generalized explanation of the foreseeable harm that would result from disclosure’ of privileged material, demonstrating that the attorney-client privilege applies ‘will go a long way’ toward fulfilling that requirement.”  “Here, the Court finds that DOJ satisfies the foreseeable harm requirement with respect to the attorney work-product privilege.”  “Courts have routinely recognized that disclosing documents prepared in anticipation of litigation, especially those reflecting legal theories, strategies, or mental impressions of attorneys, could compromise future prosecutorial effectiveness and legal positions.”  “Although the 8th Circuit issued a decision on [the subject’s] appeal, it remains active because it was remanded to the district court for further proceedings.”  “[B]road public release could undermine the protections afforded by the attorney work-product doctrine and disrupt the ongoing judicial process.”  “DOJ’s assertion in its declarations, along with the fact that the case is still active after it was remanded to the district court for further proceedings, supports the finding that ‘the disclosure of the agenc[y]’s . . . work-product withholdings would harm the interests th[at] privilege[ ] w[as] intended to protect.’”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  The court holds that “[r]egarding the PSR, which was withheld in full under FOIA Exemptions 6 and 7(C) and purportedly sealed by the Minnesota district court, the Court finds that DOJ has not met its segregability burden.”  “‘[T]he mere existence of a sealing order does not necessarily mean that an agency record is exempt under FOIA.’”  “Furthermore, it is ‘[DOJ]’s burden to show that the court’s sealing order in fact functions as a ban on the voluntary release of these materials.’”  “To prove that a sealing order was also intended to prohibit future disclosure pursuant to FOIA, an agency must assert evidence from ‘(1) [the] sealing order from the court . . . ; (2) extrinsic evidence about the intended scope of a purported sealing order; (3) orders of the same court in similar circumstances; and (4) the issuing court’s general rules or procedures.’”  “Here, DOJ does not provide such evidence to support a finding that the PSR must be withheld in its entirety.”
  
  Regarding the information withheld under the deliberative process privilege, “the Court finds that DOJ has met its burden with respect to segregability.”  “Here, DOJ submitted detailed declarations . . . stating under oath that ‘each page was individually examined line-by-line’ to identify reasonably segregable non-exempt information.”  “[Plaintiff] offers no factual basis to overcome the presumption that DOJ ‘complied with the obligation to disclose reasonably segregable material.’”