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Ball v. EOUSA, No. 21-1949, 2024 WL 4024494 (D.D.C. Sept. 3, 2024) (Boasberg, C.J.)

Date

Ball v. EOUSA, No. 21-1949, 2024 WL 4024494 (D.D.C. Sept. 3, 2024) (Boasberg, C.J.)

Re:  Requests for records concerning plaintiff

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

  • Litigation Considerations, Adequacy of Search; Procedural Requirements, Searching for Responsive Records:  The court holds that “[s]ummary judgment for EOUSA is . . . proper on the adequacy of the search . . . .”  First, the court relates that “Plaintiff does not generally contest the adequacy of this search process.”  “Rather, at various points he argues that ICE should have produced certain records to which he seeks access.”  The court holds that “[a]n adequate-search challenge cannot, however, serve as a backdoor FOIA request to a separate and independent agency.”  “As Defendant rightly points out, if [plaintiff] seeks records from ICE, ‘the law requires [him] to submit a request . . . directly to’ that agency.”  “Plaintiff has not done so.”  “Failing that, ICE’s mere involvement as an ‘agency with which EOUSA consulted’ in responding to Plaintiff’s FOIA request ‘does not require ICE in turn to conduct additional searches of its own.’”  Second, the court holds that “[t]he record moreover reflects – and [plaintiff] does not contest – that EOUSA conducted a search of its own records that was ‘reasonably calculated to uncover all relevant documents.’”  “A declaration attached to Defendant’s Motion attests that ‘[a]ll systems of records located within the [Middle District] that are likely to contain records responsive to plaintiff’s request have been thoroughly searched.’”  “That this search did not produce certain records that [plaintiff] wishes to see does not, on its own, indicate that the search was inadequate.”
     
  • Exemption 3:  The court holds that “[a]s both sides appear to agree, one [Exemption 3] statute is the Child Victims’ and Child Witnesses’ Rights Act, which requires withholding ‘all documents that disclose the name or any other information concerning a child’ ‘in connection with a criminal proceeding.’”  “Citing this statute, ICE and FBI withheld ‘portions of records pertaining to child victims involved in criminal proceedings.’”  “Reading Plaintiff’s Opposition generously, the Court understands his sole complaint here to be that certain Exemption 3 withholdings by ICE referenced an ‘Unspecified Statute.’” “EOUSA has clarified in its Reply, however, that the ‘mystery Exemption 3 statute’ is, in fact, the Child Victims’ Act, which was mislabeled as ‘an artifact of the way the documents were produced.’”  “That response appears to vitiate Plaintiff’s objections.”  “[Plaintiff] has not otherwise raised . . . any objection to the invocation of § 3509(d) for the withholdings at issue here, and the Court finds that they are amply justified.”
     
  • Exemption 5, Deliberative Process Privilege, Attorney Work-Product; Exemption 6; Exemption 7(C):  The court relates that “Plaintiff objects to the withholding under Exemption 5 of roughly two categories of documents.”  “In the first category are various documents utilized in prosecuting the case against [plaintiff], all of which were withheld as ‘Trial Preparation Material’ under the work-product privilege.”  “Plaintiff generally complains that the Vaughn Index descriptions for these documents do not indicate what they contain, who authored them, whether they were prepared for litigation, or even whether they at all differ from publicly available sources.”  “Defendant, in response, has submitted a supplemental declaration . . . describing the documents and explaining why Defendant has invoked the work-product privilege in withholding them.”  “Even with the benefit of that supplemental declaration, however, EOUSA falls short of its obligation to explain the basis for its withholdings.” “The Vaughn Index is no help at all:  it contains scarcely more information than the titles of the documents and the exemption invoked.”  “The supplemental declaration does a little better, but not much.”  “The fundamental problem here, however, is that in camera review of these documents reveals that most of these descriptions are not just incomplete; they are also inaccurate.”  “In fact, every single one of [a certain batch of] records [that the court identifies] is a publicly available document created by a third party.”  “The Court cannot fathom how such documents could be considered exempt from FOIA: they are not even ‘inter-agency or intra-agency memorandums or letters,’ as required by Exemption 5, much less those ‘prepared in anticipation of litigation or for trial by an attorney.’”  “To be sure, ‘under some circumstances, an attorney’s compilation of various documents, each of which is itself a proper subject of discovery, constitutes an attorney’s opinion work product subject to protection.’”  “Even had EOUSA articulated this rationale for withholding the documents, however – and it did not – ‘not every compilation by an attorney is protected.’” “The crucial factor is ‘whether the attorney’s selection of the contents could reveal or provide insights into the “mental processes of the attorney” in the analysis and preparation of a client’s case.’”  “The Court finds little danger of that here.”  “Few would be surprised to learn that government attorneys consulted standard practice guidelines and relevant caselaw in preparation for trial, and the several hundred pages at issue here reveal little other than that the attorneys in the Middle District did their homework.”

    “Two final notes are in order.”  “First, the Government has claimed Exemption 5’s deliberative-process privilege for . . . a single document it titles ‘Criminal Case’ and ‘Trial Preparation Material.’”  “It also puzzlingly invokes Exemptions 6 and 7(C) to withhold ‘third party names’ in the event that the entire document is not withheld under Exemption 5.”  “There is no basis for these exemptions here.” “The single record at issue, believe it or not, is simply a copy of United States of America v. Wilkerson, 702 F. App’x 843 (11th Cir. 2017), a separate case involving a sex offender.” “Quite aside from the fact that Wilkerson is not a ‘personnel’ or ‘medical’ file as required by Exemption 6, it beggars belief to assert privacy interests in a published court opinion.” “And for the same reasons that the Court previously rejected EOUSA’s assertion of the work-product privilege over the entire document, it likewise finds no basis for withholding the opinion under the deliberative-process privilege.”  “Second – and the above determination notwithstanding – a few pages within the withholdings discussed above seem to have highlighted annotations.” “Those markings apparently affect only a few records:  the ‘Standards and Guidelines’ document published by the Colorado Department of Public Safety, an academic article, and the Wilkerson case.”  “While the documents themselves are not work product or protected by the deliberative-process privilege, the annotations fall under Exemption 5.”  “For these documents and any others that may have such annotations, the Government may thus choose either to produce un-annotated versions of the documents or to withhold only those pages with annotations.”

    “Defendant fares better with the second category of documents withheld under Exemption 5 and the work-product privilege.”  “These consist primarily of internal memoranda produced by attorneys at the Middle District in anticipation of litigation against [plaintiff] himself as well as emails among the attorneys discussing litigation strategy.” “Such descriptions sufficiently describe the nature and contents of the withheld documents, identify the origin and circumstances of their creation when known, and indicate that they were prepared with the objectively reasonable expectation of litigation against [plaintiff] himself.”  “‘These types of documents, in short, are classic attorney work product, the disclosure of which would risk putting DOJ’s lawyers’ thought processes and strategy on public display.’”  “Some of the emails for which [plaintiff] seeks to compel disclosure likewise fall under the privilege.”  “The Vaughn Index describes these emails as ‘internal inquiries and communication exchange[s] between AUSA and agency staff about trial,’ . . . and the supplemental declaration notes that the exchanges ‘were prepared in connection with a law enforcement proceeding and discuss litigation strategy for the plaintiff’s criminal case.’”  “While such descriptions win no awards for comprehensiveness, they suffice to meet the Government’s burden, especially in light of the ‘presumption of good faith’ afforded agency declarations – though Defendant has tested the limits of that presumption here.”

    “One email, however, raises slightly different issues.” “As Plaintiff points out, this email appears to have been released twice – in earlier and later productions – with different redactions applied each time.”  “Plaintiff argues that, ‘as the key portion of this email sequence has been revealed, EOUSA can no longer exert associated Exemption 5 withholdings’ in the document.”  “Defendant, for its part, curiously continues to insist that ‘release of the entire record would inhibit the candid, internal discussion necessary for efficient and proper trial preparation.’”  “That response is odd not just because Defendant has already released the redacted text, but also because the email chain concerns a prior FOIA request [plaintiff] filed . . . – not his trial.”  “In any event, [plaintiff’s] objection wins the day, but it gets him nothing:  because Plaintiff already has access to a version without that redaction, the Court sees no point in ordering the Government to re-release the exact same document.”  “[Plaintiff] also contests an Exemption 5 redaction on a different email that seems to be part of the same . . . related email chain.”  “Defendant appears not to address this objection, other than to generally claim that ‘ICE did not ultimately assert Exemption 5 in connection with the materials sent on consultation.’”  “Astute readers will wonder how Defendant can both defend its Exemption 5 redaction in one part of the email chain while claiming in the same breath that it has not asserted any Exemption 5 withholdings in any such records.” “The Court thus lacks a basis for assessing the justification for the Exemption 5 redaction – or even a way of knowing whether an unredacted copy has been provided to Plaintiff – and will order EOUSA to produce the record without such redaction to the extent it has not already done so.”
     
  • Exemption 5, Foreseeable Harm and Other Considerations:  The court holds that “[f]or the withholdings on which it prevails, the Government has sufficiently demonstrated that it ‘reasonably foresees that disclosure would harm an interest’ the exemption protects.”  “In particular, Defendant has explained that disclosure of the internal memoranda and emails would ‘reveal privileged recommendations regarding whether and how to respond to criminal prosecutions’ and would ‘prevent the Department from being able to assert a viable privilege to the extent those records are sought in other criminal prosecutions.’”  The Court agrees that there is a ‘strong national interest in protecting’ children from sexual abuse, and that disclosure of those documents and others on which the Government has met its burden ‘would have negative, downstream consequences on the prosecution of other similar actions regarding sexual misconduct involving minors.’”
     
  • Exemption 6:  The court relates that “Plaintiff, in an interesting twist, actually chides Defendant for under-redacting documents under this exemption, thus leaving ‘cracks’ in its ‘armor.’”  “[Plaintiff] then wedges into these cracks a blanket argument that EOUSA’s disclosures have thereby implicitly admitted that its remaining Exemption 6 redactions are not necessary to avert a reasonably foreseeable harm.”  “As EOUSA points out, however, an ‘agency may have additional reasons for releasing some government email addresses and withholding others,’ such as ‘differences in rank or the public availability of contact information for the government employee.’”  “The inconsistencies also appear to stem, at least in part, from EOUSA’s reprocessing of its records at [plaintiff’s] request, which led Defendant to ‘lift[ ] certain withholdings . . . in the interests of reducing disputes for the Court.’”  “The Government elsewhere amply explains, moreover, what it fears:  the ‘unwarranted invasion of privacy of the minor victims, witnesses, and third parties mentioned in the records,’ as well as that of ‘investigative federal agents’ and ‘government staff and attorneys.’” “EOUSA also reasonably ‘seeks to protect the . . . telephone numbers and other [personally identifying information] data listed on the records,’ . . . to protect individuals from ‘efforts to (a) contact them directly, (b) gain access to their personal or financial information, or (c) subject them to harassment or harm.’”  “The Court cannot ignore those expected privacy harms merely because, on Plaintiff’s telling, the Government could have withheld even more personal information.”  “Nor does any countervailing public interest mandate such disclosure.”
     
  • Exemption 7(E); Litigation Considerations, Vaughn Index/Declaration:  The court relates that “[a]mong the records that ICE withheld under this exemption were various audio and video files, covering both Plaintiff’s arrest and interview (withheld in part) as well as his detention-facility calls and Skype calls (withheld in full).”  “[Plaintiff] protests that ICE’s Vaughn Index improperly aggregates these files into a single record entitled, ‘Audio of the interview with [plaintiff] and video of [plaintiff’s] arrest.’”  “He requests that the Court ‘direct ICE to republish’ its Vaughn Index to disaggregate each video and audio file into separate entries with timestamped markers denoting each claimed exemption.”  The court finds that “[plaintiff] misunderstands the purpose of a Vaughn Index.”  “It is but one tool – admittedly, a sometimes indispensable one – for agencies to meet their obligation to ‘specify in detail which portions of’ a record are disclosable and provide a ‘proper justification’ for any withholdings.” “But agencies may also discharge this responsibility through ‘sufficiently detailed affidavits or declarations.’”  “Here, ICE has provided more than enough detail to specify the records withheld and the basis for the redactions.”  “Its Vaughn Index and declarations describe the nature of the audio and video files, whether they were released in part or withheld in full, and the reason for claiming an exemption.”  “ICE explains, for instance, that Exemption 7(E) was invoked ‘because law enforcement techniques and/or procedures for law enforcement investigations compiled for law enforcement purposes, if disclosed, could reasonably be expected to risk circumvention of the law.’”  “That risk is acute, according to ICE, because the agent depicted in the records was ‘performing his or her duties as an undercover agent,’ and so ‘disclosure of the content of these [video and audio files] would reveal techniques used by the agents to gather evidence against [plaintiff].”  “That breach would, in turn, ‘assist bad actors’ to ‘avoid future investigations.’”  “The ‘low bar’ for asserting a withholding under Exemption 7(E) is thus ‘easily cleared here.’”
Court Decision Topic(s)
District Court opinions
Exemption 3
Exemption 5
Exemption 5, Attorney-Client Privilege
Exemption 5, Attorney Work-Product Privilege
Exemption 5, Deliberative Process Privilege
Exemption 6
Exemption 7(C)
Exemption 7(E)
Litigation Considerations, Adequacy of Search
Litigation Considerations, Foreseeable Harm Showing
Litigation Considerations, Vaughn Index/Declarations
Procedural Requirements, Searching for Responsive Records
Updated October 16, 2024