Brown v. EOUSA, No. 19-2303, 2021 WL 3472382 (D.D.C. Aug. 5, 2021) (Kollar-Kotelly, J.)

Brown v. EOUSA, No. 19-2303, 2021 WL 3472382 (D.D.C. Aug. 5, 2021) (Kollar-Kotelly, J.)

Re:  Request for records concerning plaintiff's criminal case

Disposition:  Granting defendant's motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration:  Responding to plaintiff's objection, the court finds that "the Vaughn Index coupled with the declaration are more than adequate to 'permit meaningful review and adversarial testing of [the] exemption claims.'"
   
• Exemption 3:  The court relates that "[t]he 'statute' applicable to the grand jury information is Federal Rule of Criminal Procedure 6(e), which requires secrecy for grand jury proceedings."  "Rule 6(e) qualifies as a statute for purposes of Exemption 3 because it was affirmatively enacted by Congress."  The court finds that "Defendant withheld 'grand jury transcripts that included information presented in front of the grand jury, and documents that identified the details of the proceedings, including the grand jury witnesses and questions that were presented to the grand jury by federal prosecutors.'"  "Since the disclosure of such records would surely reveal secret aspects of the investigation, summary judgment is warranted on the Exemption 3 withholdings."
   
• Exemption 5, Deliberative Process Privilege & Attorney Work-Product Privilege:  The court holds that "summary judgment is warranted on the Exemption 5 withholdings."  The court finds that "Defendant fully withheld as attorney work product the 'Case Notes' of the Assistant United States Attorney (AUSA) who handled plaintiff's prosecution . . . including 'the prosecution memoranda, draft pleadings and case trial preparation notes' . . . ."  "This was proper."  "Defendant also applied both the attorney work product privilege and the deliberative process privilege to 'draft documents and pleadings' that 'differed from the final filing produced,' . . . including a 'Draft Plea Agreement,' an 'Interagency working draft' of a Crime Lab Report, and 'Internal draft communication [to the Public Defender] that was not sent to outside counsel' . . . ."  "To the extent that certain documents were withheld solely as deliberative process records that, unlike work product, are not categorically protected from all disclosure, [defendant] attests that 'a harm assessment on all notes and documents' was conducted and '[h]andwritten notes found on documents that did not present a harm in release were released to the requester.'"
   
• Exemptions 6 & 7(C):  The court holds that "summary judgment is warranted on the withholdings under Exemption 7(C)."  The court first notes that "Defendant withheld third-party information under FOIA's personal privacy Exemptions 6 and 7(C)."  "Although both exemptions are properly invoked, the Court will address only Exemption 7(C) since it is without question that plaintiff's request for records pertaining to his criminal case satisfies the threshold law enforcement requirement of Exemption 7."  The court relates that "Defendant redacted 'the names and identifying information relating to third parties' and the 'direct telephone numbers and email' of 'law enforcement personnel involved in the litigation[.]'"  "The declarant plausibly explains why disclosure of such information could 'subject [the] individuals to an unwarranted invasion of their personal privacy' or 'to harassment or harm.'"  Responding to plaintiff's objection that "defendant [did] 'not explain[] what steps' were taken 'to determine if the individuals they asserted [privacy] interests for are living or deceased[,]'" the court finds that "it is only when the agency withholds third-party information to protect the deceased individual's personal privacy that it must confirm that it 'took certain basic steps to ascertain whether [the] individual was dead or alive.'"  "Nothing suggests that defendant's withholding decisions rested on 'the death of an individual,' much less one 'whose privacy interest provide[d] the rationale for [the] 7(C) FOIA exemption.'"  "Further, plaintiff's failure to offer any evidence of a public interest to balance against the individuals' significant privacy interests is alone self-defeating."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court relates that defendant "attests that in addition to the examination performed by other 'members of the Staff,' [defendant's declarant] personally examined each responsive page 'line-by-line . . . to identify non-exempt information which could reasonably be segregated and released,' and that all reasonably segregable records were released to plaintiff."  "As found above, defendant properly withheld complete documents under Exemption 5, and plaintiff does not dispute that volume two of the joint appendix filed in the Fourth Circuit is a sealed record that EOUSA cannot disclose 'without [that] Court's permission.'"  "Therefore, the Court is satisfied that defendant has disclosed all reasonably segregable non-exempt information."
   
• Litigation Considerations, Adequacy of Search:  The court finds that, "to the extent that the adequacy of the search is questioned, defendant has shown that 'its search was reasonably calculated to uncover all relevant documents.'"  The court notes that "[defendant] attests that 'USAO-NCE personnel conducted a search' of 'the CaseView system,' utilizing the search terms of [variations on plaintiff's name] and located '[plaintiff's] criminal case file,' . . . the contents of which are adequately described in the Vaughn Index."