House v. DOJ, No. 14-20, 2016 WL 3906574 (D.D.C. July 14, 2016) (Moss, J.)

House v. DOJ, No. 14-20, 2016 WL 3906574 (D.D.C. July 14, 2016) (Moss, J.)

Re: Request for records concerning electronic surveillance of plaintiff

Disposition: Granting in part and denying in part defendant's motion for summary judgment

• Procedural Requirements, Time Limits: The court finds that "[n]othing in FOIA or the caselaw supports the novel contention that an agency waives otherwise available exemptions simply because it fails to respond to a FOIA request prior to the time the FOIA requester brings suit or that '[t]he delay in DOJ’s search . . . affect[s] its adequacy.'" "Nor does FOIA permit a requester to recover damages based on an agency's 'dilatory conduct,' . . . or to recover attorneys' fees where the plaintiff has not 'substantially prevailed.'" "And although an agency's delay in conducting a search might justify 'a finding that [the] [p]laintiff constructively exhausted his administrative remedies,' . . . the Department has not raised an exhaustion defense in this case."
   
• Procedural Requirements, Searching for Responsive Records: "[T]he Court cannot foreclose the possibility that the Department possesses potentially responsive records that predate June 29, 2009, and the Vaughn index offers no explanation for why any such records were withheld." "It may be that the Department excluded such documents based on a construction of [plaintiff's] request as encompassing only records relating to a Title III authorization, as opposed to authorizations for pen registers and trap and trace devices." "The Court is skeptical, however, that [plaintiff's] request is amenable to such a limited construction." "Thus, with respect to the time period from April 1, 2009 to June 29, 2009, the Court concludes that the Department has not yet carried its burden of demonstrating that it is entitled to judgment as a matter of law." "In all other respects, however, as explained below, the Court rejects [plaintiff's] contention that the Department's search was inadequate." The court relates that "[t]he Department has introduced a declaration explaining its search methodology" which "explains that '[t]here were two sources of records in [the Criminal Division] where documents responsive to [plaintiff's] FOIA request were likely to be located," "explains that the Department searched the Title III database for 'references to the telephone number that [plaintiff] identified in his . . . FOIA request' and for [plaintiff's name]." The court relates that defendant also "attests that the Department identified the Criminal Division attorney who reviewed the request for permission to apply for a wiretap, as well as the prosecutor who made the request, and searched the Criminal Division attorney's email account" and "explains: '[The Criminal Division] searched the two records systems that would contain information responsive to [plaintiff's] request'" and "'[i]ts search was conducted in good faith, and was reasonable and complete.'"
   
• Exemption 3: "[T]he Court . . . concludes that all of the records identified in the Vaughn index were properly withheld under either Exemption 3, but "limit[s] its decision granting summary judgment to the records listed in the Department's Vaughn index, which has arguably failed to identify all responsive records." The court relates that "[t]he 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." "As the Court has previously explained, under D.C. Circuit precedent, '"intercepted communications" obtained pursuant to a Title III wiretap fall "squarely within the scope" of Exemption 3.'" "And this Court has extended that holding to the application for a wiretap and all supporting materials submitted to the court to obtain a Title III wiretap."
   
• Exemption 5, Attorney Work-Product: The court agrees with defendant "that the withheld records were prepared 'in anticipation of litigation' because '[e]ach of the documents listed [ ] above was prepared by an attorney who was acting at the behest of a client (the U.S. Government) or someone acting at the direction of such an attorney.'" Additionally, responding to plaintiff's argument "that the Department has failed to comply with its duty to segregate all responsive, non-exempt material," the court finds that "the Department has no duty to segregate factual material under the work-product privilege." "Similarly, although [plaintiff] makes various allegations of government misconduct, . . . the 'government-misconduct exception . . . has only been applied to the deliberative-process privilege.'" "Moreover, '[e]ven assuming the exception [does] apply to the work-product privilege, it is construed very narrowly,' and [plaintiff] has not adduced any credible, non-speculative evidence of the kind of 'government wrongdoing' required to trigger the exception."