Ewell v. DOJ, No. 14-495, 2016 WL 316777 (D.D.C. Jan. 26, 2016) (Moss, J.)

Ewell v. DOJ, No. 14-495, 2016 WL 316777 (D.D.C. Jan. 26, 2016) (Moss, J.)

Re: Request for records concerning plaintiff's criminal case

Disposition: Granting defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "[t]he search was adequate and reasonable."  The court relates that "[t]he agency can show that it conducted an adequate search by relying on '[a] reasonably detailed affidavit [or declaration], setting forth the search terms and the type of search performed, and averring that all files likely to obtain responsive records (if such records exist) were searched.'"  The court finds that "[t]he Justice Department has introduced just such a declaration this case."  The court explains that "the declaration submitted by the Department makes clear that it 'made a good faith effort to conduct a search for the requested records.'"  Additionally, the court finds that "[a]lthough [plaintiff] may wish that the Department had searched more databases for records regarding the Title III wiretap or other, unspecified subjects, an agency need not 'search every record system,' especially when it concludes that only certain systems are likely to have responsive records."
   
• Exemption 3:  The court holds that defendant's properly invoked Exemption 3.  The court relates that "[t]he Justice Department asserts that the non-disclosure provisions of Title III authorize it to withhold the application it submitted to the federal court in Pennsylvania for a wiretap, including all supporting materials."  "The Court agrees that Title III makes no distinction, at least for the purposes of Exemption 3, between the recordings and the application (including all supporting materials) that gave rise to them."  "Both the recordings and the application are required by statute to be sealed except under specific circumstances."  "There is no reason that the recordings themselves should be understood as 'particular types of matters to be withheld' under Title III but the application the Department submitted to obtain them should not be."
   
• Waiver:  The court holds that plaintiff's waiver argument based on the allegation that "'Title III intercepted content ... w[as] disclosed, played, and entered into evidence' at his detention hearing . . . is unpersuasive."  The court finds that "the transcript of [plaintiff's] detention hearing does not show that any wiretapped conversations were played in open court" and "even if the government had played the recordings at [plaintiff's] detention hearing, that would not be sufficient . . . to waive Exemption 3 with respect to the supporting documents that [plaintiff] seeks."  "The public-domain exception applies where a FOIA requester can identify documents 'made public through an official and documented disclosure' that exactly 'match the information previously disclosed.'"
   
• Exemption 5, Attorney Work-Product Privilege:  The court holds that defendant's properly withheld documents "prepared in anticipation of [plaintiff's] criminal prosecution."  The court finds that "[c]ourts in this jurisdiction have consistently held that memoranda and e-mails sent between prosecutors in anticipation of prosecution are covered by the work product privilege."  The court also finds that while "[plaintiff] argues that the Department has failed to comply with its duty to segregate all responsive non-exempt material, . . . the Department has no duty to segregate factual material under the work product privilege."  Additionally, the court finds that while "[plaintiff] similarly argues that several of the withheld documents (the Title III affidavit and authorization memorandum) are not 'predecisional' because they accompanied the application presented to the court, . . . the question whether a document is 'predecisional' is relevant only to the assertion of the deliberative-process privilege, not the work product privilege."