Krocka v. EOUSA, No. 17-2171, 2019 WL 690341 (D.D.C. Feb. 19, 2019) (Cooper, J.)

Krocka v. EOUSA, No. 17-2171, 2019 WL 690341 (D.D.C. Feb. 19, 2019) (Cooper, J.)

Re:  Request for records concerning plaintiff's criminal case and related habeas action

Disposition:  Granting in part defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "[t]he agency searched locations reasonably likely to contain responsive documents: the USAO's physical and electronic case files pertaining to [plaintiff's] cases as well as the e-mails of the AUSAs who handled those cases."  "Those locations most likely exhausted the places where [plaintiff's] files might be found."  "The agency does not, however, say the 'magic words' that it “searched all locations likely to contain responsive documents.'"  "Accordingly, the Court will reserve judgment on the adequacy of EOUSA's search pending submission of a supplemental declaration indicating whether the agency searched all files and locations likely containing responsive material."
   
• Exemption 7(D):  First, "the Court concludes that EOUSA properly withheld these eleven CDs ["of recorded jail calls between [plaintiff] and third parties"] pursuant to FOIA Exemption 7(D)."  The court relates that "[t]he government avers that it was the local sheriff’s office and jail that 'provided the recorded jail calls to federal law enforcement authorities based upon an assurance that the recorded calls would not be disseminated further.'"  Second, "[t]he Court thus concludes that the agency properly withheld the entirety of . . . letters ["from individuals who it says corresponded with the AUSA handling [plaintiff's] criminal case with an implied assurance of confidentiality"] under Exemption 7(D)."  "[T]he Court has little doubt that the authors of these letters provided information to the AUSA under an implied assurance of confidentiality."  "[Plaintiff] was charged with and convicted of witness tampering and sending threatening and extortionate communications, . . . crimes which by definition expose cooperating witnesses to a risk of retaliation and violence."  "And while [plaintiff] argues that the agency could have redacted 'all personal identifying information' before releasing the letters, . . . Exemption 7(D) protects both the identity of confidential informants and the information they provide . . . ."  "Therefore, as the government explains, it would not be enough 'to simply redact the name of the author.'"
   
• Exemption 5, Attorney Work-Product:  First, the court holds that "EOUSA properly withheld ["factual summaries created by prosecutors and investigators in preparation for criminal proceedings against [plaintiff]"] in full under the work-product doctrine."  "The agency avers that these documents were prepared in anticipation of [plaintiff's] criminal prosecution, and . . . that documents were prepared by 'prosecutors and investigators working with and at the direction of the prosecutions[.]'"  Additionally, the court finds that, "as the agency explains, it was under no obligation to segregate any information from these materials: 'If a document is fully protected as work product' – that is, if it was prepared in anticipation of litigation as these factual backgrounds were – 'then segregability is not required.'"  Second, regarding "three e-mails between AUSAs and law-enforcement personnel about the prosecution," the court finds that, "as with the factual summaries, EOUSA was not required to segregate some of the information in these e-mails, which are fully protected as work product."
   
• Exemption 3:  "The Court . . . concludes that the agency properly withheld the grand jury materials pursuant to Exemption 3."  The court finds that "[t]he 300 or so pages of withheld grand jury materials consist of transcripts of witness testimony, exhibits, filings containing materials submitted in camera, and returned subpoenas."  "These materials clearly would 'tend to reveal some secret aspect' of the grand jury's investigation: the transcripts would reveal the identities of witnesses and the substance of their testimony, and the exhibits and filings would reveal the strategy and direction of the investigation."  "And 'all grand jury subpoenas . . . fall within FOIA's third exemption.'"
   
• Exemption 7(C):  "The Court therefore concludes that [the redactions of "the hand-printed surname of a third party . . . ; the e-mail address of a non-supervisory AUSA from an e-mail of a law enforcement officer to the AUSA regarding attendance at an upcoming sentencing . . . ; the e-mail addresses of non-supervisory AUSAs from an e-mail between AUSAs regarding attendance at an upcoming sentencing . . . ; and the names, contact information, and other personally identifiable information of third parties from fax cover sheets from a private detention facility to the Postal Inspector"] were proper."