Campbell v. DOJ, No. 14-1350, 2015 WL 5695208 (D.D.C. Sept. 28, 2015) (Leon, J.)

Campbell v. DOJ, No. 14-1350, 2015 WL 5695208 (D.D.C. Sept. 28, 2015) (Leon, J.)

Re: Request for records concerning court-authorized wiretaps in pending drug conspiracy cases in Western District of Pennsylvania

Disposition: Granting defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[U]pon review of defendant’s declaration, [the court] conclude[s] that defendant’s search was reasonable and adequate."  The court finds that defendant searched locations where "documents responsive to this request were likely to be located."  The court also analyzes several of plaintiff's arguments.  First, the court relates that "[p]laintiff first contends that defendant erred when it refused to conduct a search for responsive documents until after this suit was filed."  The court finds that "[t]his delay, however, is without legal consequence in this case."  "The only result of an agency’s delay in conducting a search is that the agency may not raise an exhaustion defense to suit."  Second, the court finds that "[p]laintiff was required to send his request to the FOIA office of the component that maintains the records he sought . . . and a component in receipt of a request is not required to search the record systems of another component not in its control."  "Finally, plaintiff argues that defendant erred because it failed to conduct a Privacy Act search."  "Plaintiff fails to recognize, however, that searches conducted under FOIA and the Privacy Act are examined under the same standard."
   
• Exemption 5, Attorney Work-Product:  The court holds that defendant is entitled to summary judgment on its use of Exemption 5.  The court finds that "[f]or each document withheld, defendant provides in its Vaughn Index a description of the nature and contents of the document, the documents author and origin, and the circumstances of its creation."  "Moreover, as defendant’s declarant notes, each document was prepared by a lawyer, or a person acting at a lawyer’s direction, as part of the wiretap application process and was therefore created in anticipation of the criminal prosecution of those implicated by the intercepted communications."  "As described, most of the documents—including substantive records like recommendation memoranda, affidavits, and approval letters—clearly qualify as attorney work-product because they were prepared for criminal prosecution."  "However, even those documents that appear more administrative in nature—for example, email messages confirming receipt or logging notes—also fall within Exemption 5."  "These records were created in anticipation of a specific criminal prosecution and would not have been created in the absence of it."  The court also finds that "'[i]f a document is fully protected as work product, then segregability is not required.'"