Hughes v. DOJ, No. 19-03278, 2022 WL 2528105 (D.D.C. July 7, 2022) (Mehta, J.)

Hughes v. DOJ, No. 19-03278, 2022 WL 2528105 (D.D.C. July 7, 2022) (Mehta, J.)

Re:  Request for records concerning plaintiff

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for judgment on the pleadings or, in the alternative, for summary judgment; awarding plaintiff $350 in litigation costs

• Litigation Considerations, Adequacy of Search:  "[T]he court finds that Defendants' search was adequate."  The court relates that "Defendants aver that they conducted an adequate search."  "Because Plaintiff explicitly requested records assembled by USAO-WDNC, EOUSA assigned the search only to USAO-WDNC."  "[T]he USAO-WDNC employee who oversaw the search, described how she conducted the search, including identifying the relevant case-management system accessed to locate records."  "[That employee] and other USAO-WDNC employees also searched electronic folders and drives and requested physical documents from the Atlanta Federal Records Center."  "[The employee] was not aware of any other sources of potentially responsive records."
  
  The court also relates that defendant considered "two categories of records . . . to fall outside the scope of Plaintiff's FOIA request."  "First, a box of hard copy records contained 'records related to the other two defendants' in Plaintiff's criminal case."  "EOUSA treated those records as nonresponsive to Plaintiff's FOIA request because it interpreted his request as only seeking 'records related to Plaintiff.'"  "Second, EOUSA did not produce 'court-filed documents' because Plaintiff did not make a specific ask for publicly available records."  "According to [defendant], '[w]henever feasible, EOUSA considers a FOIA request as a request for non-public source records and requires that a requester seeking public source records submit a separate request specifically asking for such records.'"  Regarding the first category, the court finds that "EOUSA failed in its 'duty to construe a FOIA request liberally,' . . . when it interpreted Plaintiff's request as seeking documents only 'regarding himself' to the exclusion of 'records regarding co-defendants.'"  "Plaintiff sought records 'assembled by the [USAO-WDNC] containing the name Arander Matthew Hughes, Jr.'"  "Plaintiff's use of the word 'containing' implies a broader scope of records than only those 'regarding' him."  "The court reaches a different conclusion as to the 'court-filed documents' that the agency treated as outside the scope of the request."  "As discussed, EOUSA did not produce those records because, it claims, its practice is to treat FOIA requests as not asking for publicly available records, unless specifically requested."  "The court need not, however, reach the propriety of EOUSA's practice."  "Plaintiff's sole challenge to the non-release of publicly available 'court-filed documents' is to complain that Exemptions 6 and 7(C) do not apply to an appellate brief that the United States filed in his case."
  
  Finally, the court finds that "[b]efore deciding what, if anything, needs to be done about [one remaining category of documents that defendant did not consider to be within the scope of the FOIA request], Defendants must clarify whether USAO-WDNC has the record."
   
• Exemption 5, Attorney Work-Product:  "The court agrees that the eleven records withheld in full or in part under Exemption 5 were properly deemed attorney work product."  "The withheld records all regard the criminal prosecution against Plaintiff and include draft court filings, many with handwritten notes . . . ; internal DOJ checklists and reports with affixed notes . . . ; email correspondence between a DOJ attorney and government employees . . . ; and other notes revealing attorneys' mental impressions . . . ."  "Courts in this District have found similar records to be properly withheld under the attorney-work-product privilege."
   
• Exemptions 6 & 7(C):  The court relates that "Defendants invoke Exemptions 6 and 7(C) to justify withholding personal information about law enforcement personnel, federal employees, witnesses, victims, Plaintiff's codefendants, and other third parties."  "The court agrees that the privacy interest held by federal government law enforcement personnel, including FBI agents and local law enforcement officers, named in certain documents is substantial."  "The court also agrees that the privacy interest held by victims, witnesses, third parties who provided information, third parties of investigative interest, and third parties merely mentioned is substantial."  However, the court finds that "Defendants' contention that Plaintiff's codefendants have a 'substantial privacy interest' fails to recognize that the D.C. Circuit has said that the 'privacy interests of individuals who have been convicted or pled guilty "are weaker than for individuals who have been acquitted or whose cases have been dismissed" and are "plainly substantially weaker than the privacy interests of individuals who have been investigated but never publicly charged at all."'"  "Because Defendants have not established that Plaintiff's codefendants had anything more than a de minimis privacy interest, they have failed to carry their burden of showing that Exemption 7(C) protects withheld codefendant information."
  
  The court also finds that "[t]he FBI's Vaughn Index is more difficult to discern."  "The FBI has produced to the court only a redacted version of its Vaughn Index."  "Nothing in [defendant's] Declaration suggests that the FBI withheld records related to Plaintiff's codefendants."  "That said, to the extent that any of the FBI's withheld records include information regarding Plaintiff's codefendants, the court orders they be produced."  "The sole exception to this order is any criminal history report, or 'rap sheet,' or comparable summary record."  "Although rap sheets on the FBI's Vaughn Index are unidentified, in light of the heightened privacy interest afforded by the Supreme Court to such records, no rap sheet or comparable record need be produced."
   
• Attorney Fees:  The court holds that "[b]ecause Plaintiff has substantially prevailed and the entitlement factors weigh in his favor, the court finds that Plaintiff is entitled to the full amount of his litigation costs totaling $350."  "The court does not reduce the costs award for degree of success, because Plaintiff could not have become a prevailing party, by definition, without first filing – and paying to file – this suit."  Regarding eligibility, the court finds that "[it] has now compelled Defendants to re-review codefendant records previously deemed unresponsive and to disclose codefendant information as improperly withheld."  "Plaintiff has substantially prevailed."  Regarding entitlement, the court first finds that "[b]ecause the relevant public benefit refers mainly to whether disclosure would 'add to the fund of information that citizens may use in making vital political choices,' . . . the first factor does not favor Plaintiff."  "Plaintiff seeks records primarily to secure relief from his criminal conviction."  Second, the court finds that "[the second and third entitlement factors] favor Plaintiff."  "Plaintiff does not seek to gain commercial benefit."  "And an award of costs to a pro se plaintiff is consistent with FOIA's fee-shifting provision."  "Lastly, [the court finds that] the reasonableness of Defendants' withholding of the requested documents favors Plaintiff."  "One question courts consider is whether defendants have shown that they had a colorable basis for waiting to release records until after the requester filed suit."  "Defendants here have made no such showing to justify when they released records."  "Another question is whether Defendants' litigation position with respect to the scope of Plaintiff's request and its withholding of codefendant information under Exemption 7(C) were reasonable."  "They were not."  "EOUSA's reading of Plaintiff's request to exclude records 'relating' to codefendants is contrary to the straightforward way in which Plaintiff framed his request (all records 'containing the name Arander Matthew Hughes, Jr.')."  "Additionally, Defendants' conclusory assertion that Plaintiffs' codefendants had a substantial privacy interest overlooked on-point Circuit precedent."