Ellis v. DOJ, No. 13-2056, 2015 WL 3855587 (D.D.C. June 22, 2015) (Boasberg, J.)

Ellis v. DOJ, No. 13-2056, 2015 WL 3855587 (D.D.C. June 22, 2015) (Boasberg, J.)

Re: Request for records concerning surveillance of plaintiff

Disposition: Granting defendant's motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  The court holds that defendant conducted an adequate search.  The court finds that defendant "has articulated which databases were searched, why those databases were selected, and what documents were located."  "It has also made clear that it searched 'the two records systems that would contain information responsive' to Plaintiff's request."  The court also finds that "[t]he delay in DOJ's search . . . [until after suit was filed] does not affect its adequacy."  Additionally, the court finds that "[plaintiff] . . . may not complain that the agency failed to search indices under the control of the FBI or EOUSA."  Lastly, the court finds that "[a]s the only evidence Plaintiff offers [to show bad faith] is agency delay, he cannot foreclose summary judgment, which the Court will grant for Justice on the adequacy of the search."
   
• Exemption 5, Attorney Work-Product:  The court holds that defendant properly withheld certain documents.  The court finds that "[certain] types of documents, in short, are classic attorney work product, the disclosure of which would risk putting DOJ's lawyers' thought processes and strategy on public display."  "The records include research and analysis, as well as recommendations about possible courses of action, created in preparation for criminal prosecution."  Additionally, the court finds that "[b]ecause [certain] quasi-administrative records," "includ[ing] system logging notes indicating that OEO has received a request from a prosecutor for permission to apply for a Title III order and emails from ESU attorneys to AUSAs acknowledging receipt of Title III applications," "were compiled in anticipation of a specific criminal prosecution and are not generic agency records maintained for some conceivable future litigation, this Court joins several other courts in this District that have held that the work-product privilege protects them."  The court also addresses plaintiff's argument for a "government-misconduct exception" and holds that "[e]ven assuming the exception did apply to the work-product privilege, . . . [p]laintiff has offered no specific allegation or evidence to satisfy this high standard."