Butt v. DOJ, No. 19-504, 2020 WL 4436434 (D.D.C. Aug. 3, 2020) (Boasberg, J.)

Butt v. DOJ, No. 19-504, 2020 WL 4436434 (D.D.C. Aug. 3, 2020) (Boasberg, J.)

Re:  Request for records concerning plaintiff

Disposition:  Granting in part and denying in part defendants' motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "Because EOUSA's supplemental declarations describe 'with particularity the files that were searched, the manner in which they were searched, and the results of the search,' . . . and identify search terms used, the Court is satisfied that Defendants have provided a reasonably specific account of the scope and method of their search."  Responding to plaintiff's argument concerning the adequacy of defendants' declarants, the court holds that "[g]iven that both [declarants] detailed their direct roles in processing Plaintiff's request, and because they both are knowledgeable about EOUSA's handling of FOIA requests, . . . the Court concludes that the Government has more than met its burden to produce declarations from individuals who are knowledgeable about the search process and this request."
  
  However, regarding defendants' contention that "it is '[s]tandard practice . . . to exclude the U.S. Attorney from [searching for records responsive] to FOIA request[s] as the U.S. Attorney's records would be exempt' as attorney work product under FOIA Exemption (B)(5),'" the court finds that "an agency cannot refuse to search a certain location just because that search could uncover materials that may fall under a privilege."  The court directs that "Defendants must either search [the U.S. Attorney's] physical and digital records for potentially responsive materials or offer a declaration better explaining why they need not do so."
   
• Exemption 5, Attorney Work-Product Privilege:  The court holds that "[a]lthough far from detailed and often repetitive, the Government's explanations for withholding [certain] Vaughn Index documents . . . under the work-product privilege is sufficient to discharge its evidentiary burden."  "First, the Government provides a description of the contents of the withheld documents, including the author and circumstance of the document's creation."  "Next, it clearly explains that the documents were created in connection with Plaintiff's criminal prosecution."  Regarding a separate set of records, which previously "the Court found the Government's explanation for withholding . . . too vague," "[a]fter reviewing the documents in camera . . . [the court finds that] it is clear that these are communications between Government attorneys detailing their litigation strategy in response to Plaintiff's appeal of his criminal conviction."  "The documents were obviously 'prepared or obtained because of the prospect of litigation,' and thus were properly withheld under the work-product exemption."  Regarding "records that include communications between Government attorneys and law-enforcement personnel who were 'involved . . . with Plaintiff's criminal investigation'" which "contain discussions of the evidence used to prosecute Plaintiff and detail the '[attorneys'] legal strategies, reasoning, and analysis related to Plaintiff’s criminal case,'" the court holds that the Government "describes the documents withheld by identifying both the author and the circumstances of creation."  "It then provides a clear indication that the documents were prepared in connection with Plaintiff's criminal prosecution."
   
• Procedural Requirements, "Reasonable Segregable" Obligation:  Regarding plaintiff's segregability argument, the court holds that, "in the FOIA context, '[i]f a document is fully protected as work product, then segregability is not required.'"