Jordan v. DOJ, No. 17-2702, 2021 WL 4033070 (D.D.C. Sept. 3, 2021) (Contreras, J.)

Jordan v DOJ, No. 17-2702, 2021 WL 4033070 (D.D.C. Sept. 3, 2021) (Congreras, J.)

Re:  Request for "'any record . . . that establishes the amount of time expended'" defending the Department of Labor ("DOL") in plaintiff's prior FOIA action, as well as for records concerning plaintiff

Disposition:  Denying plaintiff's motions for reconsideration; denying plaintiff's motion for sanctions; denying plaintiff's demand for evidence; denying plaintiff's motion for clarification; granting in part and denying in part plaintiff's motion for partial summary judgment; denying plaintiff's motion to strike; granting in part and denying in part defendant's motion for summary judgment; granting defendant's motion to amend its answer

• Litigation Considerations, Vaughn Index/Declaration:  Responding to plaintiff's "move[] to strike the DOJ's Vaughn index because it is unsigned," the court holds that "[c]ounsel for the DOJ signed the summary judgment motion, . . . so he complied in substance with the rule that attorneys sign their filings."  "The DOJ's motion relies on the Vaughn index to justify the withholdings, . . . while the declaration 'consists of . . . information supporting the Vaughn Index,' . . . and even purports to 'incorporate[ ]' the 'attached' index."
   
• Litigation Considerations:  The court grants "DOJ's motion for leave to amend."  The court relates that "DOJ moves to amend its answer to include the affirmative defense of collateral estoppel."  "Specifically, it claims that [plaintiff] is collaterally estopped from relitigating issues resolved in his prior FOIA action against the DOL."  The court finds that "[g]ranting the DOJ leave to amend will not cause undue delay or prejudice to [plaintiff], as he has already opposed the substance of the agency's affirmative defense in responding to its summary judgment motion."
   
• Litigation Considerations, Adequacy of Search:  The court holds that "DOJ is entitled to summary judgment with respect to EOUSA's search."  The court relates that "EOUSA asked the D.C. U.S. Attorney's Office to search for any records responsive to [plaintiff's] FOIA request because that office was responsible for defending the DOL against [plaintiff's] previous lawsuit."  "U.S. Attorney's Office personnel searched the emails of the employees mentioned in [plaintiff's] request letter for terms [pertinent to plaintiff's request]."  "The Assistant U.S. Attorney assigned to [plaintiff's] prior action against the DOL made the entire casefile for that action available for production, including emails, notes, motions, pleadings, and drafts."
   
• Litigation Considerations, Mootness and Other Grounds for Dismissal & Exemption 4:  The court holds that "DOJ is . . . owed summary judgment as to the propriety of withholding [one] email under Exemption 4."  The court relates that "DOJ claims Exemption 4 to withhold the . . . email that was at issue in [plaintiff's prior FOIA] litigation with the DOL."  "[Plaintiff] attacks the DOJ's use of Exemption 4 to protect the email just as he did when the DOL claimed the same exemption."  "The DOJ retorts that collateral estoppel prevents [plaintiff] from taking another bite at the apple."  The court holds that "DOJ is right."  "Collateral estoppel plainly bars [plaintiff] from relitigating Exemption 4's application to the . . . email."  "[Plaintiff] raised that exact issue in his previous suit against the DOL, and this Court squarely held that Exemption 4 protected the email from disclosure."  "Moreover, it is not unfair to bind [plaintiff] to the Court's previous judgment; in fact, it would be unfair to require the DOJ to debate an issue already decided."  "Importantly, collateral estoppel does not require the parties to be the same so long as the issue is."
   
• Exemption 5, Attorney Work-Product:  The court relates that "DOJ asserted the work-product privilege over 'draft pleadings and email communications' between the Assistant U.S. Attorneys who worked on [plaintiff's] previous case and DOL attorneys."  "The Court finds that the DOJ properly withheld the records pursuant to the attorney work-product privilege."  "The documents . . . clearly fall within the protections of the work-product doctrine – they are communications among attorneys made while litigating in federal court . . . ."  "These documents are classic attorney work-product, and disclosure would put on display the thoughts and strategies of counsel representing the DOL."
   
• Exemption 5, Deliberative Process Privilege:  The court relates that "DOJ next claims that the deliberative process privilege permitted it to withhold emails between Assistant U.S. Attorneys and DOL attorneys 'analyzing the facts and strategy in defending' against [plaintiff's] suit as well as 'draft documents and pleadings where the draft differed from the final filing produced.'"  The court finds that "DOJ properly justified its withholdings under the deliberative process privilege."  "Communications exchanging the correspondents' ideas on strategy going forward consist of the kinds of 'recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinion of the writer rather than the policy of the agency' that the deliberative process privilege is meant to protect."  "Revealing these strategic exchanges over how to proceed with a litigation would 'inaccurately reflect or prematurely disclose the views of the agency' and would likely give staff pause before candidly putting such exchanges in writing in the future."  "The same goes for the draft documents and pleadings."  "A draft document 'is, by definition, a preliminary version of a piece of writing subject to feedback and change.'"  "Disclosing the drafts at issue here would divulge deliberations over how to present the DOL's best case."
   
• Exemption 6: The court relates that "DOJ withholds under Exemption 6 'the names, identifying information, direct telephone numbers, and email addresses relating to third parties, government attorneys, and government personnel involved in [plaintiff's] prior litigation.'"  The court finds that "[t]he information the DOJ withholds is that 'which can be identified as applying to [an] individual' and therefore constitutes 'personnel' or 'similar files' under Exemption 6."  "And while an agency employee does not always have a strong privacy interest in information like his name or professional contact information, the 'privacy interest at stake may vary depending on the context in which it is asserted.'"  "[Plaintiff] 'has a history of sending harassing emails' to government employees accusing them of misconduct."  "The individuals named in the withheld records thus have an obvious and strong privacy interest in keeping their identities and contact information from [plaintiff]."  "On the other side of the scale, [plaintiff] has provided no argument for how the release of the withheld information would allow him to better understand any conduct by any government agency."  "That makes the balancing exercise an easy one."
  
  "[Plaintiff] nevertheless argues that the DOJ improperly withheld certain information that is publicly available on the internet."  "He points out that the U.S. Attorney's Office and a law firm have disclosed on their websites the contact information for some of the individuals who wrote or received the withheld documents."  "[Plaintiff] is correct that the DOJ cannot withhold contact information that is already public."  "To the extent the DOJ withholds publicly available contact information for individuals already identified in the responsive records (whether by disclosure or by a description in the DOJ's Vaughn index), . . . it must release that information to [plaintiff]."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court relates that "[defendant] writes that 'each page was individually examined line-by-line by members of the Staff to identify non-exempt information which could be reasonably segregated and released.'"  "Further, [defendant's declarant] 'personally conducted a second line-by-line review of each page of potentially responsive records.'"  "Her statement satisfies the DOJ's obligation to demonstrate that it has segregated and released what nonexempt information it could."