Hum. Rts. Def. Ctr. v. DOJ, No. 20-00674, 2023 WL 4131616 (W.D. Wash. June 22, 2023) (Chun, J.)

Hum. Rts. Def. Ctr. v. DOJ, No. 20-00674, 2023 WL 4131616 (W.D. Wash. June 22, 2023) (Chun, J.)

Re:  Request for records of claims against DEA that DEA resolved through payment of settlement or judgment

Disposition:  Granting in part and denying in part defendants’ motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that “DEA has shown that its search was adequate beyond material doubt.”  “[Defendant’s] Declaration was reasonably detailed in its explanation of the databases and systems searched.”  “[Defendant] explained why [the particular systems searched] were the only databases or systems that would likely contain information responsive to Plaintiff’s request.”  “[Defendant] also explained how the DEA used the information gleaned from the first two databases to tailor the searches it performed within the . . . case management system [searched] for responsive documents.”  “Plaintiff correctly points out that the DEA did not disclose the search terms that it used when searching the databases or [case management] system.”  “But Plaintiff submits no on-point legal authority, nor has the Court found any, requiring an agency to share the search terms it used to render a search adequate.”  “The Court is satisfied that the DEA reasonably described the process it used in responding to the FOIA request.”  Responding to plaintiff’s argument concerning missing records, the court holds “[t]hat the DEA has not located all complaints or claim forms does not render its entire search inadequate.”

• Exemption 6:  First, the court relates that “[t]he parties do not dispute that the files the DEA produced are ‘similar’ files.”  “The documents subject to the FOIA request represent various types of claim files in which an identifiable claimant sought compensation from the DEA for an alleged wrong.”  “The Court agrees that the files at issue satisfy this threshold requirement under exemption 6.”
  
  Second, the court turns to analyzing each category of information withheld pursuant to Exemption 6.  The court relates that “[t]hroughout its production, the DEA invoked exemption 6 to redact the identities of ‘tort claimants who filed administrative claims, DEA employees who filed claims for property damage, DEA employees who filed Equal Employment Opportunity (EEO) or Merit System Protection Board . . . complaints and appeals, and DEA employees who filed whistleblower and other complaints with the U.S. Office of Special Counsel.’”  The court finds that “[p]rivate citizen claimants have more than a de minimis privacy interest in preventing the disclosure of their identities.”  “The Court similarly recognizes a privacy interest in not disclosing the other DEA employee claimants’ identities for the simple reason that embarrassment, harassment, or retaliation may result in publicly disclosing that an employee has filed a claim against their employer.”  “Plaintiff identifies no public interest served by disclosing claimants’ identities.”  “Nor does Plaintiff explain how the release of claimant names would somehow ‘shed light on [the DEA’s] performance of its statutory duties or otherwise let citizens know what their government is up to.’”  “When there is no public interest in disclosure, ‘[w]e need not linger over the balance; something, even a modest privacy interest, outweighs nothing every time.’”  “Thus, the Court concludes that the DEA’s redactions of claimants’ names would constitute a clearly unwarranted invasion of personal privacy.”
  
  “The DEA also withheld the identities of alleged ‘tortfeasors/wrongdoers’ (collectively, tortfeasors).”  “The Court follows the parties’ lead in presuming that the alleged tortfeasors are all DEA employees.”  “[Defendant’s] Declaration says that disclosure of the DEA employees’ ‘identities would prejudice their effectiveness in conducting their official duties, including [law enforcement] investigations, and subject them to unwarranted harassment.’”  “The DEA offers no further specification.”  “For this particular issue, the DEA’s justification for nondisclosure is insufficient.”  “The DEA’s statements are vague, conclusory allegations of prejudice and harassment.”  “Further, ‘federal government employees’ privacy interests are generally diminished when they have been “investigated for misfeasance relating to the performance of official duties.”’”  However, “[b]ecause it wishes to evaluate the public interest prong, the Court assumes without deciding that these DEA employee alleged tortfeasors have a nontrivial privacy interest in preventing the disclosure of their identities.”  Regarding the public interest, the court finds that “[t]here is a significant public interest served by disclosure of the DEA employee alleged tortfeasors’ identities to determine whether the ‘public servants who have been accused of wrongdoing are multiple offenders; how much taxpayer money has been used to resolve claims against those individuals; and whether any continue to be employed by DEA.’”  “Balancing the tortfeasors’ nontrivial privacy interests against the significant interests favoring disclosure, the Court concludes that revealing the DEA employee alleged tortfeasors’ names would not constitute a clearly unwarranted invasion of personal privacy.”  “The DEA thus improperly invoked exemption 6 in redacting the alleged tortfeasors’ names who are DEA employees.”
  
  “Next, Plaintiff challenges the DEA's redaction of information from ‘settlement agreements that contain provisions expressly permitting public disclosure of the agreements.’”  “Certain names of individuals appear redacted in each settlement agreement.”  “The DEA says that it only redacted the names of ‘third parties’ because as non-parties to the agreement, they never consented to the release and disclosure of the agreements.”  “But these third parties, at least in the two settlement agreements Plaintiff cites, might be DEA employees accused of wrongdoing.”  The court finds that “[a]ssuming the third parties are private citizens, disclosure of their identities would, for the reasons above, constitute a clearly unwarranted invasion of personal privacy.”  “But if these third parties are DEA employees accused of wrongdoing who are the subject of the settlement agreement, any privacy interest is greatly diminished.”  “As for the public interest, knowing the identities of DEA employees who are the subject of a settlement agreement would enable the public to see ‘what their government is up to,’ for the same reasons articulated above.”  “The Court’s conclusion for this section depends on who these third parties are.”  “If the third parties are DEA employees accused of wrongdoing, revealing their names in the settlement agreements would not constitute a clearly unwarranted invasion of personal privacy.”  “The DEA must produce these settlement agreements without redacting the names of the DEA employees accused of wrongdoing.”  “But if the third parties are private citizens, disclosure would constitute a clearly unwarranted invasion of personal privacy, and the DEA need not produce the settlement agreements.”
  
  “Plaintiff next challenges the DEA’s redaction of information that Plaintiff says has already been publicly disclosed in civil litigation filings.”  “This information includes case numbers, judge and attorney names, and litigant names.”  “Apparently, these redactions mostly appear in settlement agreements that were not filed on any civil case docket.”  The court finds that “[l]itigants have diminished privacy interests because ‘their names are publicly available on the underlying case docket report, which includes much of the stigmatizing information.’”  “Generally, in a civil lawsuit, case numbers, judge and attorney names, and litigant names are matters of public record.”  “The DEA has not shown that the privacy interest at stake for litigants, judges, or attorneys in civil matters is nontrivial, as the agency must to justify any withheld information.”  “Arguing in favor of redaction, the DEA relies on case law holding that an agency need not expend resources to collect and produce publicly available documents.”  “But Plaintiff seeks disclosure of information already in the public domain that appears elsewhere in documents, many of which apparently have not been made public.”  “The information Plaintiff requests that has already been made public cannot reasonably constitute an ‘unwarranted’ privacy intrusion under [E]xemption 6.”  “And if there is a cognizable privacy interest that is being overlooked, the DEA has described no privacy interest at stake.”
   
• Exemption 7, Threshold:  The court holds that “[t]he DEA has shown no nexus between its law enforcement duties and the information in these records.”  “The DEA did not compile these records to prevent criminal activity or enforce federal law.”  “To the contrary, the claim and settlement records at issue appear to be generated by the claimant’s counsel or the DEA during its resolution of these administrative or civil claims filed against the agency – not brought on behalf of the agency.”  “The records here do not involve the DEA’s investigative or law enforcement function; the records concern the resolution of mostly tort and discrimination claims filed against the DEA, not the DEA’s investigation or enforcement of drug offenses.”  “Having concluded that the DEA has not met this threshold requirement, the Court thus grants Plaintiff’s motion and denies Defendants’ motion as to whether the DEA properly invoked exemption 7(C).”
   
• Litigation Considerations, Vaughn Index/Declaration & Litigation Considerations, Jurisdiction:  The court relates that “Plaintiff says that the DEA violated FOIA by withholding files 18 and 19 and requests that the Court order the DEA to produce these files.”  The court finds that “[t]he Vaughn index cites no FOIA exemption or other basis for non-disclosure.”  “The DEA’s failure to provide any information besides stating that these files are sealed is inadequate because it prevents the Court from evaluating whether the DEA properly withheld this information.”  “The DEA has offered no information that would allow the Court to assess the purpose and scope of the order that sealed files 18 and 19 to evaluate whether the DEA may justifiably rely on the court seal in refusing to produce these files.”  “As explained below, Defendants are directed to submit evidence surrounding the sealing order and provide supplemental briefing on whether the DEA may withhold files 18 and 19 . . . .”  “The Court therefore denies without prejudice Plaintiff's motion as to whether Defendants violated FOIA by withholding files 18 and 19.”

• Litigation Considerations, “Reasonably Segregable” Requirements:  “The Court has scrutinized the DEA’s segregability determinations for each entry in the Vaughn index.”  “The entries are not sufficiently individualized to permit the Court to find that all reasonably segregable factual information has been produced.”  “The segregability paragraph in [defendant’s] Declaration is boilerplate.”  “Specifically, the DEA has not met its burden in establishing that it disclosed all reasonably segregable portions of the documents that contain narrative descriptions of the alleged wrongs for each claim or lawsuit.”  “For this category of information, the DEA’s redactions show that it did not engage in a ‘careful’ review, and that the DEA did not produce all ‘reasonably segregable portion[s]’ of the record while redacting only the exempted information, as required.”  The court finds that “[the] identical justifications for all narrative descriptions are also conclusory and fail to describe with specificity the DEA’s redactions for each document.”  “The DEA’s position that further segregation of these narrative descriptions is impossible may lack credibility because elsewhere in its production, the DEA did properly segregate and redact information from claim descriptions.”  “If the DEA contends that it cannot reasonably segregate and redact certain narrative descriptions, it must submit a supplemental Vaughn index and supplemental declaration that explains in greater detail, for each document, the DEA’s justifications behind those particular redactions.”  “The Court will not accept identical, boilerplate justifications for redacting information throughout the Vaughn index.”

• Litigation Considerations, Relief:  The court relates that plaintiff argues that “the Court should . . . declare that [defendant’s] violation of FOIA’s timeliness requirements was egregious.”  The court finds that “[h]ere, the DEA gave Plaintiff its initial determination 27 business days after receiving the FOIA request.”  “The DEA’s response was 7 business days late.”  “Between June and October 2019, the DEA communicated with Plaintiff about narrowing the scope of its request, until Plaintiff filed an administrative appeal.”  “[T]he Court cannot conclude that the DEA’s untimely response was ‘egregious.’”  “The Court therefore denies Plaintiff’s motion as to its timeliness claim.”

• Attorney Fees:  Responding to plaintiff’s motion for attorney fees, “[a]s to Plaintiff’s eligibility for fees, the Court finds it may be premature to determine whether Plaintiff has substantially prevailed because this order does not resolve all issues for the DEA’s production.”  “The level of success that Plaintiff ultimately achieves will affect Plaintiff’s eligibility.”  “And as to Plaintiff’s entitlement to fees, the parties provide no argument on the four factors that district courts must consider . . . .”  “The Court therefore denies without prejudice Plaintiff’s request for attorney fees.”