Marino v. DOJ, No. 12-865, 2016 WL 4621062 (D.D.C. Sept. 6, 2016) (Collyer, J.)

Marino v. DOJ, No. 12-865, 2016 WL 4621062 (D.D.C. Sept. 6, 2016) (Collyer, J.)

Re: Requests for records concerning plaintiff, as well as concerning third party trial and investigation

Disposition: Granting defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search: The court finds that defendants' searches were adequate. First, the court holds that, "[b]ased on [plaintiff's] request for any records related to him or his criminal cases, the searches conducted by CRIM were 'reasonably calculated to uncover all relevant documents.'" The court relates "that CRIM/OEO searched the electronic surveillance unit database, the shared drive used by CRIM personnel, databases used by the organized crime and gang section, and the closed [case] file for any mention of [plaintiff], including aliases." Second, the court holds that "[plaintiff] does not raise any specific arguments about the adequacy of the search conducted by FBI[]" and, "[t]herefore, the Court treats the argument as conceded." "In addition, based on this Court's review of the declarations provided by the FBI, the search was reasonable and conducted in good faith." Third, the court holds that, "[b]ecause [EOUSA has] asserted in a sworn affidavit that a reasonable search was conducted of files where responsive records would most likely be located, . . . [EOUSA is] entitled to a presumption of good faith." "Based on [plaintiff's] request, the searches conducted by USAO-MA were 'reasonably calculated to uncover all relevant documents.'"
   
• Exemption 5, Deliberative Process Privilege & Attorney Work-Product Privilege: First, regarding Criminal Division withholdings, the court holds that "Exemption 5 is a proper justification to withhold the aforementioned records because they 'enhance[d] the quality of agency decisions by protecting open and frank discussion.'" "If draft documents reflecting advice on investigation and litigation strategies were released to the public, lawyers and investigators in the Criminal Division would, in the future, be less likely to be explicit, open, and communicative, ultimately leading to inefficiency or plain lack of success." Additionally, the court finds that "CRIM's description of the nature of the records is sufficiently detailed for the Court to find that they were properly withheld as attorney work product." The court explains that the records "include legal strategies, interpretations, and opinions of Department of Justice attorneys with regard to the facts of the investigation and criminal prosecution of [plaintiff]."
   
• Exemptions 6 & 7(C): The court holds that "[t]he Criminal Division properly withheld these records under Exemptions 6 and 7(C)." The court finds that it "cannot set aside the 'substantial' privacy interest of third parties without actual evidence of misconduct by the government that demonstrates a strong public interest in disclosure." "[Plaintiff's] allegations alone do not 'warrant a belief by a reasonable person that the alleged Government impropriety might have occurred,' and the only tangible interest [plaintiff] has identified is his own interest in the records to use to appeal his conviction."
   
• Exemptions 6, 7(C), 7(D) & 7(F): The court holds that "EOUSA . . . properly withheld responsive records under Exemptions 6, 7(C), 7(D), and 7(F)." The court relates that "[t]he records withheld contain: (1) 'the names and/or identifying information, law enforcement officers and support employees, third parties of investigative interest, and third parties who provided information to law enforcement in the criminal prosecution of [plaintiff]'; (2) 'names, identifying data, and/or information provided by individuals under an express or implied assurance of confidentiality'; and (3) 'information concerning the identities of individuals and material that the individuals provided in connection with the investigation of plaintiff for violation of the federal criminal laws.'" The court finds that "[plaintiff] fails to detail a legitimate public interest that would outweigh the clear privacy interests at risk in releasing the records."
   
• Litigation Considerations, "Reasonably Segregable" Requirements: "The Court has reviewed the Government's declarations and finds that these submissions adequately specify 'which portions of the document[s] are disclosable and which are allegedly exempt.'"