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Gordon v. Courter, No. 14-1382, 2015 WL 4602588 (D.D.C. July 31, 2015) (Kollar-Kotelly, J.)


Gordon v. Courter, No. 14-1382, 2015 WL 4602588 (D.D.C. July 31, 2015) (Kollar-Kotelly, J.)

Re: Request for records concerning telephone number associated with phone used by plaintiff

Disposition: Granting defendant's motion for summary judgment

  • Litigation Considerations, Adequacy of Search:  "[T]he Court concludes summary judgment for the agency is appropriate regarding the adequacy of the FOIA search."  The court finds that "[t]he agency, through the declaration submitted, has detailed which databases were searched, why those databases were searched, and what documents were located."  "The agency searched 'the two records systems that would contain information responsive' to Plaintiff's request."  "The agency has sustained its burden of justifying its response to Plaintiff's request by means of detailed affidavits, and Plaintiff does not provide any contradictory evidence."  The court also finds that "while Plaintiff is correct that the agency violated FOIA by failing to conduct a search until after the suit was filed, that result has no legal consequence in this case."
  • Procedural Requirements, Searching for Responsive Records:  Regarding plaintiff's argument that defendant should have searched certain FBI and EOUSA systems, the court holds that "because the above databases are not within the Criminal Division's control, Plaintiff may not seek relief regarding searches—or the lack therefore—of those other databases in this action."
  • Exemption 5, Attorney Work-Product:  The court holds that "DOJ thoroughly explained in both its declaration and Vaughn Index why [certain] documents were appropriately withheld as attorney work-product."  The court notes that "DOJ described the nature and contents of the withheld documents[,]" "identified the documents' origins[,]" "described the investigative circumstances around their creation[,]" and "identified the foreseeable criminal prosecution for which the documents were created."  "In short, these types of documents constitute attorney work-product, and their disclosure would risk putting DOJ's lawyers' thought processes and strategy on public display."  Specifically, "[t]he Court notes that, while the second and third categories of documents listed above—electronic notices confirming receipt of the Title III application—may appear to have a quasi-administrative character, they are still records compiled in anticipation of a specific criminal prosecution, and courts in this District have held that the work product exemption protects such records."
  • Exemption 5, Deliberative Process Privilege:  "[T]he Court finds that the agency has made an evidentiary showing sufficient to sustain its reliance on the deliberative process privilege with respect to each of the challenged documents."  The court finds that "the deliberative process privilege applies to each document because each was" "created before the making of an official decision," "a direct part of the decision-making process," and "submitted by a decision-maker's subordinate to a decision-maker."
  • Exemptions 6 and 7(C):  The court finds that defendant's use of Exemptions 6 and 7(C) was proper "with respect to a subset of the documents withheld."  The court first finds that "[it] has 'no need to consider Exemption 6 separately because all information that would fall within the scope of Exemption 6 would also be immune from disclosure under Exemption 7(C).'"  The court then relates that "DOJ invoked Exemption 7(C) for records containing the names of the ESU and OEO attorneys involved in the processing of the Title III request at issue."  The court finds that "[p]laintiff has not demonstrated, nor does the record disclose, any public interest that favors disclosure of the withheld information."
  • Procedural Requirements, "Reasonably Segregable" Obligation:  "[B]ecause the Court finds that all of the records at issue were properly withheld as work product pursuant to Exemption 5, no further segregability analysis is necessary, and the Court concludes that the agency fulfilled its segregability obligations."
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Attorney Work-Product Privilege
Exemption 5, Deliberative Process Privilege
Exemption 6
Exemption 7(C)
Litigation Considerations, Adequacy of Search
Procedural Requirements, Searching for Responsive Records
Procedural Requirements, “Reasonably Segregable” Obligation
Updated January 12, 2022