Gilliam v. DOJ, No. 14-00036, 2015 WL 5158728 (D.D.C. Sept. 1, 2015) (Mehta, J.)

Gilliam v. DOJ, No. 14-00036, 2015 WL 5158728 (D.D.C. Sept. 1, 2015) (Mehta, J.)

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

Disposition: Granting defendant's motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  "[T]he court is satisfied that DOJ's search met its obligations under FOIA."  The court finds that "[defendant's] Declaration details why . . . two databases were selected and how DOJ went about searching them for responsive materials."  The court also rejects plaintiff's challenges to defendant's search.  First, the court rejects "[plaintiff's] contention that DOJ did not perform a search under the Privacy Act" and finds that "a Privacy Act search is co-extensive with a FOIA search."  Second, the court rejects plaintiff's "conten[tion] that DOJ should have searched two other databases" and finds that "an agency is only required to search systems that are likely to have responsive documents."  Third, the court rejects plaintiff's "challenge[] [to] DOJ's search because it took place only after he filed suit against the agency" and finds that "'the only consequence of this delay would be a finding that Plaintiff constructively exhausted his administrative remedies and therefore was entitled to bring this suit.'"
   
• Exemption 3:  "[T]he court concludes that DOJ's invocation of Exemption 3 was proper."  The court relates that "[t]o justify its withholding under Exemption 3, DOJ relies on two sections of Title III—18 U.S.C. §§ 2518(8)(b) and 18 U.S.C. § 2517—which, according to DOJ, require that [certain responsive] materials be sealed by a court order."  The court explains that "section 2518(8)(b) on its face requires courts to seal applications and orders granting the Title III intercept application" and, while "[p]laintiff points out that Title III does not specifically require sealing of authorizing memoranda," "because such records contain the very same information as applications and orders, they too are properly exempted from disclosure under FOIA."
   
• Waiver:  The court rejects plaintiff's waiver argument.  The court relates that "[p]laintiff argues that the documents at issue have entered the public domain and thus are not subject to any FOIA exemption."  The court finds that "[t]he transcripts provided by Plaintiff do not show public disclosure of the Title III applications, orders, and authorization memoranda."  "Further, Plaintiff's receipt of some of those records through discovery in his criminal case did not place them into the public domain for purposes of FOIA Exemption 3."
   
• Exemption 5, Attorney Work-Product:  "The court agrees that the seven categories of documents withheld under Exemption 5 were properly withheld as protected attorney work product."  "Plaintiff has not contested DOJ's work product assertion and therefore has conceded the issue."
   
• Exemption 5, Deliberative Process Privilege:  "The court . . . agrees with DOJ that the action memoranda from OEO to the Assistant Attorney General recommending approval of the Title III requests, as well as email messages between the requesting and reviewing prosecutors, are protected under the deliberative process privilege."  "Such documents are both 'predecisional' and 'deliberative,' as required to invoke that privilege."  The court also finds that "[p]laintiff has not offered compelling evidence of wrongdoing to vitiate the privilege invoked by DOJ."
   
• Exemptions 6 and 7(C):  "The court . . . affirms DOJ's invocation of Exemption 7(C) to protect the privacy interests of third parties."  "As other courts have done, because the documents at issue are plainly law enforcement records, the court here considers only DOJ's invocation of Exemption 7(C)."  The court finds that "there can be little doubt that persons named in the documents—DOJ attorneys, law enforcement agents, and others—have a substantial privacy interest."  The court notes that "[p]laintiff attempts to overcome these interests by asserting that there is a substantial public interest in (1) uncovering wrongdoing in how DOJ obtained the intercept authorizations that led to his prosecution and (2) showing a pattern of racial discrimination by DOJ in securing intercept authorizations in the Western District of Pennsylvania."  "But these asserted public interests are entirely conclusory and lack an evidentiary foundation to warrant a belief that government impropriety has occurred."
   
• Procedural Requirements, "Reasonably Segregable" Obligation:  "[T]he court concludes that DOJ has satisfied its segregation obligations under FOIA."  The court finds that "[t]he documents withheld under Exemption 3 cannot be segregated."  "As for the remaining documents that fall under Exemption 5, because the asserted exemption is based on the work product doctrine, segregation is not required."