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Emery v. DOJ, No. 19-3519, 2022 WL 16551319 (D.D.C. Oct. 31, 2022) (Cobb, J.)

Date

Emery v. DOJ, No. 19-3519, 2022 WL 16551319 (D.D.C. Oct. 31, 2022) (Cobb, J.)

Re:  Request for records concerning plaintiff

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiff’s motion to assess court costs

  • Litigation Considerations, Exhaustion of Administrative Remedies:  The court relates that “ATF initially claimed that it conducted an adequate search of the places it would reasonably expect to find the requested records, but was ‘not able to locate any responsive records’ to [plaintiff’s] request.”  “Then, after [plaintiff] filed suit, the ATF discovered, processed, and released new documents.”  “The DOJ’s Second Motion for Summary Judgment, arguing that the case should be dismissed because [plaintiff] failed to exhaust the administrative appeals process, was filed after the disclosure of the additional records identified by the ATF.”  “But [the court finds] by that point, it was too late.”  “Any valid argument that [plaintiff] had failed to exhaust his administrative remedies regarding the ATF’s original decision had become moot.”  “Therefore, the DOJ’s Motion for Summary Judgment cannot be granted on the grounds that [plaintiff] failed to exhaust his administrative remedies.”
     
  • Litigation Considerations, Adequacy of Search:  “[T]he Court agrees with the DOJ that the search for records responsive to [plaintiff’s] request was adequate.”  The court relates that “[t]he first affidavit describes in some detail the nature of the locations that were searched, as well as the tools used to locate responsive records in those locations.”  “In that affidavit, [defendant] avers that ‘[t]here are no other record systems used or maintained by ATF that would be likely to have information concerning a specific person, like [plaintiff], who was the subject of a federal criminal investigation of violent crime,’ and that ‘[a]ccordingly, all files that are reasonably likely to contain responsive materials (if such records existed) were searched.’”  “[Defendant’s] second affidavit explains why the hard copies, which the ATF reasonably believed to have been destroyed, were not discovered until later.”  The court finds that “[t]hose sworn statements are sufficient to carry the DOJ’s burden as to its search terms and methodology.”
     
  • Exemption 3:  The court relates that “ATF cited Exemption 3 to withhold one page of grand jury material:  ‘a draft grand jury indictment’ for a single charge, ‘presented for the grand jury’s consideration in the government's efforts to prosecute [plaintiff] for federal crimes.’”  “[Defendant’s] declaration states that because the indictment was in draft form, its disclosure would reveal information about the grand jury’s deliberations.”  “The ATF is a law enforcement agency that compiled the responsive records in the course of a criminal investigation.”  “[Plaintiff] does not contest these facts.”  “Thus, the Court finds that the ATF properly invoked FOIA Exemption 3.”
     
  • Exemption 5, Deliberative Process Privilege & Attorney Work Product Privilege:  The court relates that “ATF cited Exemption 5 to withhold a seventeen-page memorandum that was ‘prepared by an Assistant United States Attorney and is addressed to a supervisory prosecutor with decision-making authority within the United States Attorney’s Office for the Western District of Missouri.’”  “[Defendant’s] declaration states that the document includes analysis of the facts of [plaintiff’s] case and makes recommendations with regard to [plaintiff’s] prosecution.”  “As described by [defendant], the memorandum was privileged both as attorney work product (prepared in advance of litigation) and under the deliberative process privilege (because it made recommendations prior to the decision whether to prosecute [plaintiff]).”  “[Plaintiff] does not contest these facts.”  “Thus, the Court finds that the ATF properly invoked FOIA Exemption 5.”
     
  • Exemption 6 & Exemption 7(C):  The court relates that “ATF, citing Exemptions 6 and 7(C), withheld individual names, including handwritten signatures or initials; phone numbers; residential addresses, or descriptive information that might be linked to a person’s home address; badge numbers of ATF Special Agents or other non-senior law enforcement officials; the serial numbers of firearms (along with other information that could be linked to the identity of the owner of the firearm); and records that pertained to any specific person other than Emery that were pulled from the [Treasury Enforcement Communications System (“TECS”)] or National Instant Background Check System.”  “According to the second [Defendant] declaration, the ATF withheld the names and identifying information of those individuals because, after independently reviewing each piece of information, the ATF determined that the disclosure of the information ‘would shed little, if any, light on the functioning of government’ while at the same time constituting an unwarranted breach of privacy, particularly given the embarrassment or harassment that might result if it were generally known that one was associated with a federal criminal investigation.”  “[Plaintiff] provides no reason why the public interest in disclosure outweighs the ATF’s asserted interest in protecting the safety and anonymity of the third parties identified in the records.”  “Thus, the Court finds that the ATF properly invoked Exemptions 6 and 7(C).”
     
  • Exemption 7(E):  The court relates that “ATF is a law enforcement agency that compiled the responsive records in the course of a criminal investigation.”  “The ATF invoked Exemption 7(E) to protect internal law enforcement codes relating to the TECS law enforcement database; internal standardized information used to assess risk prior to the execution of a search warrant; and information within ‘a prosecution memorandum pertaining to the precise way certain undercover efforts and clandestine evidence collection techniques were used to advance the investigation of [Emery] and others.’”  “The ATF concluded that, if publicly known, each of those three types of information could potentially be used by criminals to circumvent or evade law enforcement techniques.”  “[Plaintiff] does not contest any of these facts.”  “Accordingly, the Court concludes that the ATF properly invoked Exemption 7(E).”
     
  • Litigation Considerations, “Reasonably Segregable” Requirements:  “[T]he Court concludes that the ATF released all reasonably non-segregable information from the responsive records.”  The court finds that “ATF has successfully met [its] burden here by submitting a Vaughn index, . . . as well as a sworn declaration that it ‘carefully reviewed the responsive records on a line-by-line and page-by-page basis to identify reasonably segregable, non-exempt information’ and ‘determined that there is no additional, meaningful, nonexempt information that may be reasonably segregated and released without disclosing information that warrants protection under a FOIA exemption.’”
     
  • Attorney Fees, Eligibility:  The court finds that “[plaintiff] has not prevailed under the first prong of 5 U.S.C. § 552(a)(4)(E)(ii).”  “On the contrary, the Court today grants summary judgment in favor of the ATF.”  “As for the second prong, [plaintiff] offers no evidence that his initiation of the litigation caused the ATF to release the additional documents.”  “Nor can the Court conclude that the ATF’s initial refusal was incorrect as a matter of law, considering that Emery failed to exhaust his administrative remedies with regard to that decision, thus denying the agency a full opportunity to adjudicate its refusal within the bounds of the administrative process.”  “Therefore, [plaintiff’s] Motion to Assess Court Costs is denied.”
Court Decision Topic(s)
District Court opinions
Attorney Fees
Exemption 3
Exemption 5
Exemption 5, Attorney Work-Product Privilege
Exemption 5, Deliberative Process Privilege
Exemption 6
Exemption 7(C)
Exemption 7(E)
Litigation Considerations, Adequacy of Search
Litigation Considerations, Exhaustion of Administrative Remedies
Litigation Considerations, “Reasonably Segregable” Requirements
Updated December 1, 2022