Jordon v. DOL, No. 16-1868, 2018 WL 1567584 (D.D.C. Mar. 30, 2018) (Contreras, J.)
Re: Request for two emails related to Defense Base Act Case
Disposition: Denying plaintiff's "Motion for Disclosure and Inclusion of Portions of the Emails and Other Non–Privileged Ex Parte Communications," plaintiff's request that judge disqualify himself, plaintiff's motion for reconsideration of order granting DOL extension of time to file reply, and defendant's renewed motion for summary judgment
- Litigation Considerations, In Camera Inspection: The court finds that "[i]t surely cannot be that this Court's reliance on an authorized practice to evaluate an agency's FOIA withholdings, without more, constitutes conduct that mandates recusal." "And [plaintiff] has provided no factual support for any accusation that this Court was impermissibly motivated to rely on in camera review."
- Litigation Considerations: "To the extent that [plaintiff's] motion requests reconsideration of aspects of this Court's prior Opinion, it is denied." "Though the Court will not revisit the fine details of its decision again here, it bears briefly explaining that [plaintiff] appears to misapprehend the applicable legal burden in FOIA cases." "Yes, the agency has the burden of proving the applicability of any claimed FOIA exemption." "But it need not marshal incontrovertible evidence to do so, as [plaintiff] apparently supposes." "Rather, to meet its burden, an agency must 'describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'" "DOL has done so here."
- Exemption 5, Attorney-Client Privilege: The court holds that "DOL's arguments that the attorney-client privilege applies to the [withheld] email are unavailing." The court finds that, "[f]irst, it is difficult to say, under the circumstances of this case, that one of the primary purposes of the [withheld] email was to obtain legal advice." "The email is specifically directed to another person – a non-attorney – and the email specifically (and only) seeks information from that person." "Second and relatedly, the [withheld] email does not appear to contain any factual information on which [the attorney] might rely to form a legal judgment." "Third, protection of this document does little to promote the purpose of the attorney-client privilege[.]"