Dillon v. DOJ, No. 17-1716, 2018 WL 249580 (D.D.C. Jan. 17, 2019) (Contreras, J.)

Dillon v. DOJ, No. 17-1716, 2018 WL 249580 (D.D.C. Jan. 17, 2019) (Contreras, J.)

Re:  Request for records concerning anthrax attacks in 2001

Disposition:  Denying defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[T]he Court finds that DOJ has met its initial burden, but that [plaintiff] has produced sufficient countervailing evidence to create a genuine dispute of material fact."  "DOJ included with its initial motion a declaration by . . . the FBI's Record Management Division, which both outlined the Bureau's system of records . . . and described how that system was used to locate documents responsive to [plaintiff's] request."  Additionally, the court relates that, "[plaintiff] argues that [defendant's] declaration did not include a sufficiently specific 'description of the FBI's search through the investigative file.'"  The court finds that "DOJ has addressed [this] concern[] by submitting a second declaration from [defendant], which clarified that the located investigative file was in 'electronic format,' and that personnel from the FBI's Record/Information Dissemination Section 'performed a page-by-page review of the entire file to identify all the documents' that were responsive to [plaintiff's] request."  However, "[t]he problem for the Court is that DOJ never substantively addressed [plaintiff's] evidence of unproduced emails, so the Court is left guessing as to what may have caused [an] alleged discrepancy here."  "To hopefully assuage these concerns, the Court orders that DOJ submit a notice within thirty days providing any information within its knowledge that might explain why the three emails that [plaintiff] has identified were not produced."
   
• Exemption 5, Deliberative Process Privilege & Procedural Requirements, "Reasonably Segregable" Obligation:  The court holds that "there is no doubt that the [investigative document at issue] is 'predecisional,' as it was drafted four years before the FBI concluded its investigation."  "Significant portions of the report are also certain to be 'deliberative'; the Court sees no reason to disbelieve the assertion that the [document] is 'a preliminary case summary drafted midway through the anthrax investigation [that] contains information, analyses, and suppositions based on the limited and incomplete evidence at the time' as well as 'opinions and analyses based on inter-agency communications.'"  "Nor does the Court doubt that release of certain parts of the [document] could 'inhibit inter-agency communications' and 'create public confusion,' as the FBI has claimed."  "But the report is also 2,000 pages long, and the FBI has asserted that the entire thing is deliberative."  The court finds that "the easiest way for the Court to determine whether the [document] [has been reviewed for segregability] is to look at the requested excerpts."