Barouch v. DOJ, No. 14-0552, 2015 WL 1505965 (D.D.C. Mar. 31, 2015) (Jackson, J.)

Barouch v. DOJ, No. 14-0552, 2015 WL 1505965 (D.D.C. Mar. 31, 2015) (Jackson, J.)

Re: Request for records concerning plaintiff

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

• Litigation Considerations, Adequacy of Search:  "[T]he Court finds that defendants have shown that their search was 'reasonably calculated to uncover all relevant documents.'"  The court notes that "ATF searched the systems of records 'where records responsive to Plaintiff's September 2013 FOIA request were likely to be located,'" described the system of records searched, and described how the system of records was searched.  The court also notes that defendant contacted the "ATF Special Agent who had handled the criminal investigation of plaintiff" and "ATF's Fort Worth Field Office."  The court also finds that "plaintiff's bald assertions that . . . two interviews occurred, . . . that they were taped, . . . and that ATF would possess the recordings, . . . are not persuasive evidence, given that, by plaintiff's own description, he was not present at the interviews."  The court finds that "[d]efendants' failure to find and release these particular records to plaintiff is not, therefore, evidence of agency bad faith."  Additionally, contrary to plaintiff's argument, the court finds that an "ATF Special Agent's affidavit is not necessary to establish the adequacy of ATF's search because," "[b]y identifying the databases in which defendants searched for records responsive to plaintiff's request, explaining the rationale for searching those particular databases, and specifying the keywords and search terms used in the search, [defendant's] declaration describes 'in reasonable detail the scope and method of the agency's search.'"
   
• Exemption 5, Deliberative Process Privilege:  The court holds that defendants properly invoked Exemption 5.  The court relates that "[d]efendants invoked Exemption 5 to withhold one paragraph consisting of an 'initial analysis ... provided by one employee for input from another employee in the process of developing a sound agency approach to the proposed asset forfeiture' in plaintiff's case."  "Defendants have described an exchange that was both predecisional and deliberative, and, given that, as well as the lack of any objection by plaintiff, the Court finds that no portion of the withheld paragraph was reasonably segregable, and that defendants have properly relied on Exemption 5."
   
• Exemption 7, Threshold:  "The criminal investigation of plaintiff plainly qualifies as law enforcement activity, and so the threshold requirement of Exemption 7 is met."
   
• Exemptions 6 and 7(C):  The court finds that defendant properly withheld an "audio tape . . . [which] contains an 'interview of a third party relating to crimes committed by the third party.'"  The court finds that "[p]laintiff's speculation about what the contents of the recording might reveal does not constitute 'compelling evidence'" for its disclosure.  Additionally, "to the extent plaintiff seeks to claim that the protections of Exemption 7(C) were waived as a result of the third party's judicial proceedings, plaintiff has not made the requisite showing."  Also, "plaintiff has not pointed to a public interest that overrides the significant privacy interest of the third party."  Finally, the court finds that "[t]he fact that law enforcement agents are public officials does not eliminate their personal privacy interests under FOIA."
   
• Exemption 7(E):  "The Court finds that defendants have shown enough of a risk that 'the law will be circumvented' to justify its reliance on this exemption, . . . especially in light of plaintiff's failure to object."  The court relates that "[d]efendants invoked Exemption 7(E) to withhold 'information related to TECS computer file numbers associated with [plaintiff] and navigation codes.'"  The court finds that "disclosure of this information 'could allow individuals outside the agency to circumvent agency functions and gain access to sensitive investigative information,' as well as to 'alter or create false records.'"
   
• Exemption 3:  "Because defendants have failed to provide virtually any description of the grand jury materials they withheld, the Court cannot determine whether the withholding was justified under Exemption 3."  The court relates that "ATF invokes Exemption 3 in conjunction with Rule 6(e) of the Federal Rules of Criminal Procedure, which prohibits, with exceptions, the disclosure of 'matter[s] occurring before [a] grand jury.'"  However, the court cautions that "Rule 6(e) should not be read so literally as to draw 'a veil of secrecy ... over all matters occurring in the world that happen to be investigated by a grand jury.'"  Also, the court finds that "defendants have failed to demonstrate that no portion of the [withheld information] was 'reasonably segregable,' and therefore subject to release."