Jordon v. Dep't of Labor, No. 16-1868, 2017 WL 3382057 (D.D.C. Aug. 4, 2017) (Contreras, J.)

Jordon v. Dep't of Labor, No. 16-1868, 2017 WL 3382057 (D.D.C. Aug. 4, 2017) (Contreras, J.)

Re:  Request for records concerning FOIA requests previously submitted by plaintiff

Disposition:  Denying plaintiff's corrected motion for summary judgment; granting in part defendant's motion for summary judgment; denying plaintiff's motion for discovery

• Exemption 4:  The court holds that "DOL properly withheld the unredacted version of [one] email under FOIA Exemption 4 based on its attorney-client privileged nature[,]" however, "the Court [also] concludes that, while [a second] email may be exempt from withholding, the DOL has not adequately explained its basis for withholding."  First, "the Court agrees with the DOL that the information in question is 'commercial' or 'financial' because it regards [the submitter's] commercial interest in the administration and management of [a] Program contract."  The court then finds that this information was obtained from a person because "[defendant] received the at-issue documents 'from counsel for the company[.]'"  Finally, the court finds that "[t]he [first] email itself is labeled 'subject to attorney-client privilege;' the [second] email is itself not."  "The [first] email contains an express request for legal advice; the [second] email does not."  "Indeed, although the [second] email responds to information in the [first] email and has [an attorney] 'cc-ed,' it does not necessarily meet the standard for attorney-client privilege – at least as the DOL has articulated its justification to this point."  "The Court requires further briefing focusing specifically on the DOL's justification to withhold the [second] email before it is prepared to grant summary judgment for either party." 
   
• Waiver:  The court holds that "[the submitter's] judicially compelled disclosure of the unredacted versions of its emails to [an administrative law judge] for in camera review did not waive its claim to [Exemption 4]."  The court explains that "[i]f submission of information to such review jettisoned privilege, the review would have no purpose, because any privileged document submitted for in camera review would be immediately eligible for full disclosure under FOIA."  "Nor is the submission of privileged documents for in camera review 'inconsistent with the confidential nature of the attorney-client relationship.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "DOL 'supplied a "relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlate[d] those claims with the particular part of [the] withheld document,"' and demonstrated that the release of certain portions would be meaningless."
   
• Litigation Considerations, Discovery:  "The Court does not view [plaintiff's] 'mere assertions' as a sufficient rationale to allow discovery in this FOIA action."  The court explains that "although [plaintiff] implies bad faith by [defendant's declarant] and states that 'there is very good reason to believe that the facts asserted were not within [defendant's declarant's] personal knowledge' and '[s]ome factual assertions were very clearly false,' [plaintiff] offers no evidence to substantiate his allegations that might warrant further discovery."