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Barouch v. DOJ, No. 12-0129, 2013 WL 4494686 (D.D.C. Aug. 23, 2013) (Berman Jackson, J.)

Re: First party request for records Disposition: Granting defendants' motions for summary judgment in part and denying in part
  • Procedural:  The court grants Treasury's motion for summary judgment.  Plaintiff did not "produce any evidence that he submitted a FOIA or Privacy Act request to Treasury, let alone a copy of the request itself to the court."  "[T]here is no genuine dispute that no documents were produced to plaintiff by Treasury because Treasury did not receive a FOIA request from him."
  • Exhaustion of Administrative Remedies:  As an initial matter, the court finds and EOUSA concedes that plaintiff constructively exhausted his administrative remedies with respect to his request made to EOUSA because EOUSA did not respond to his request before "the expiration of the mandatory statutory time limit for agency response under FOIA."  Likewise, with respect to documents located by EOUSA and referred to ATF for a direct response after the filing of the litigation, "the Court finds that plaintiff has constructively exhausted his administrative remedies with respect to documents uncovered by EOUSA after the initiation of this action, regardless of whether they were processed by EOUSA or by another agency, such as ATF."  "It would be anomalous to review plaintiff's challenges to EOUSA's withholdings of documents that were identified by EOUSA in the spring of 2012 and that were processed by EOUSA, but to decline review on exhaustion grounds the determinations of other agencies to which EOUSA sent some of the documents it identified at the same time."  Likewise, with respect to documents that EOUSA referred to BOP after the initiation of the action, the court also finds that plaintiff has constructively exhausted his administrative remedies. However, plaintiff's claim with regard to his initial request to ATF is barred because he failed to appeal.  The court rejects his claim that an appeal would have been futile.  "[P]ermitting plaintiff to obtain judicial review without exhausting his administrative remedies . . .  would undermine the purpose for the exhaustion requirement."  The court also rejects plaintiff's futility claims with respect to his request to BOP and finds that he has failed to exhaust his administrative remedies.  The court accordingly grants summary judgment to ATF and BOP with respect to these two requests.
  • Adequacy of Search: The court finds that the Criminal Division conducted an adequate and reasonable search for responsive records.  The Criminal Division's "affidavit . . . establishes that CRM searched the databases that were likely to turn up documents responsive to plaintiff's requests using search terms that correspond to the scope of the requests."   The court rejects plaintiff's contention that the search was inadequate because another responsive document that originated with the Criminal Division was later located.  "First, it was EOUSA that uncovered the documents in its files, not CRM."  "But even if CRM had uncovered additional documents after its initial search, 'the mere fact that additional documents have been discovered does not impugn the accuracy of the [agency] affidavits.'"  "'The issue [is] not whether any further documents might conceivably exist but whether [the agency]'s search for responsive documents was adequate.'" The court also concludes that the United States Marshals Services conducted a reasonable and adequate search for responsive records.  USMS "searched the systems of records routinely searched for documents concerning prisoners for documents relating to plaintiff." Finally, the court holds that EOUSA also conducted a reasonable and adequate search for responsive records.  Defendants' affidavits "establish that the agencies searched the databases that were likely to turn up documents responsive to plaintiff's requests using search terms that correspond to the scope of the requests."  The court notes that "[p]laintiff does not identify any problems with the way in which the search was conducted, but rather challenges the results of the search."  The court again explains that "the agencies have met their burden of demonstrating that the methods they used to search for responsive documents can be reasonably expected to produce the information plaintiff requested."
  • Exemption 5 & Segregability: The court holds that the Criminal Division properly invoked Exemption 5 and the attorney work-product doctrine to withhold a predcisional, deliberative memorandum "prepared in anticipation of plaintiff's criminal trial."  The court also concludes that "[b]ecause the . . . [m]emorandum – the only document withheld by CRM – was properly withheld in its entirety as attorney work product, the Court finds that CRM has met is segregability obligations." The court also finds that EOUSA properly withheld emails discussing various issues related to plaintiff's prosecutions as well as drafts of briefs and certain investigatory material pursuant to Exemption 5.  Based upon the descriptions provided in EOUSA's declaration, "the Court is satisfied that each of them can fairly be said to have been prepared or obtained because of the prospect of a criminal case being brought against plaintiff."  The court notes that because the documents are covered by the attorney work-product privilege, EOUSA did not need to segregate factual material.  In addition, the court declines to adopt plaintiff's argument that his "'substantial need'" for the documents requires their release.  "[W]hile that limitation may apply in the context of civil litigation discovery, it does not apply in the context of FOIA."
  • Exemption 7C & Segregability:  The court holds that USMS properly withheld names, addresses, and identification and prison registration numbers of third parties mentioned in the responsive records.  The court rejects plaintiff's argument that there is no longer a privacy interest in at least some of the information because he believes that "at least some of the named individuals . . . were 'the subject of a great number of television and newspaper reports.'"  The court notes that plaintiff has not met his burden is showing that the information at issue "is 'as specific as the information previously released,'; (2) match[es] the information previously disclosed'; and (3) was 'made public through an official and documented disclosure.'"  The court next determines that plaintiff has not asserted a public interest that outweighs these individuals' privacy rights.  Plaintiff claims that the balancing test is a "'perfunctory sham'" and asserts that he needs the information to uncover statements that will demonstrate his innocence.  The court observes that plaintiff "fails to explain how identifying information of third parties – the only withheld information – could be exculpatory and/or mitigating."  Moreover, "a requester's interest in his own case is insufficient to establish a relevant public interest."  The court also holds that ATF properly withheld names and identifying information of third parties for the same reasons explained with regard to USMS. The court finds that EOUSA also "appropriately withheld information pursuant to Exemption 7(C)" that "was of the same nature as the information withheld under the same exemption by USMS and ATF."  However, the court finds that EOUSA's declaration did not provide sufficient detail with regard to segregability.  After conducting an in camera review of the four documents at issue, the court determined that "all four of them contain portions that are not inextricably intertwined with identifying information about third parties, witnesses, and law enforcement personnel."  Accordingly, the court orders EOUSA to disclose additional portions of the documents.
Court Decision Topic(s)
Litigation Considerations, Adequacy of Search
District Court opinions
Exemption 5
Exemption 7(C)
Litigation Considerations, Exhaustion of Administrative Remedies
Updated August 6, 2014