Martin v. Garland, No. 22-1594, 2023 WL 5672274 (D.D.C. Sept. 1, 2023) (Chutkan, J.)

Martin v. Garland, No. 22-1594, 2023 WL 5672274 (D.D.C. Sept. 1, 2023) (Chutkan, J.)

Re:  Request for records concerning an Assistant United States Attorney (“AUSA”)

Disposition:  Granting defendants’ motion for summary judgment

• Litigation Considerations, Adequacy of Search & Vaughn Index/Declaration:  The court holds that “Defendants meet their burden.”  The court addresses each of plaintiff’s concerns.  “First, Plaintiff contends that the search for responsive records to a request for ‘all emails and written correspondence’ was restricted unreasonably to emails among [certain defendant employees], thus ‘excluding any outside parties’ who may have had responsive records.”  “But no agency ‘is . . . obligated to look beyond the four corners of the request for leads to the location of responsive documents,’ . . . and Plaintiff cannot fault Defendant for having confined its search to USAO-WDKY, the office Plaintiff identified as the location where responsive records would be found.”  “Second, Plaintiff argues that having USAO-WDKY ‘employees search their own files rather than have an independent third party . . . or the IT Specialist, or a representative from Administration or Human Resources conduct the search’ creates ‘an “appearance of impropriety.”’”  “This argument is unpersuasive, and as long as employees’ searches of their email accounts are reasonably calculated to uncover responsive records, a third party need not conduct the search.”  “Furthermore, [defendant’s declarant] need not have conducted the search herself to submit a declaration describing the search.”  “‘FOIA declarants are not required to have personal knowledge of the search itself, but rather personal knowledge of the procedures used in handling a FOIA request and familiarity with the documents in question.’”  “Rather, where the declarant attests to her personal knowledge of the procedures for handling a FOIA request and her familiarity with the request and documents at issue, the declarant does not run afoul of Federal Rule of Civil Procedure 56 by including ‘statements . . . based on information . . . obtained in the course of [her] official duties.’”  “Third, Plaintiff contends that the phrase ‘“written correspondence” would and should include any Letters, forms or text messages, such as “Family Medical Leave Act” request, or requests for vacation, personal time off . . . , sick days, leaves of absence, or any other request to be absent from work.’”  “The court notes that an agency ‘read[s] a FOIA . . . request as it is drafted – not as the requester might wish it was drafted.’”  “Plaintiff’s request neither sought forms, text messages, instant messages, nor ‘all records’ regarding [the subject AUSA] and medical leave.”  “Defendants did not violate FOIA when the search targeted emails and written correspondence, not records Plaintiff did not identify in his request.”  “Fourth, Plaintiff contends the search was inadequate because it was limited to Microsoft Outlook and therefore not ‘reasonably calculated to locate all relevant documents.’”  “He posits that email messages, which by now are about five years old, ‘may have been deleted from current files’ and archived in a ‘backup system’ called ‘Enterprise Vault,’ and EOUSA’s declarant did not mention searching Enterprise Vault.”  “Plaintiff’s argument does not stand up to Defendant’s declarations, the first of which avers that USAO-WDKY’s search ‘extended to every location and USAO system of records where it was reasonably likely . . . responsive records would be found, which included Microsoft Outlook email.’”  “Although there was no search of a so-called ‘Enterprise Vault,’ the declarant adequately demonstrates that a search of Microsoft Outlook, USA Email Search Portal, and .pst files serves the same function – a search of archived email messages.”  “Fifth, Plaintiff claims the search terms the IT Specialist used to search Coleman's and the retired supervisor's email accounts were deficient because the terms would not capture ‘all possible records regarding time off from work.’”  “He suggests terms including ‘vacation’ and ‘FMLA’ with ‘[the subject AUSA’s name].’”  “But a requester ‘cannot dictate the search terms for his . . . FOIA request.’”  “Instead, an agency ordinarily has ‘discretion in crafting a list of search terms as long as they are reasonably tailored to uncover documents responsive to a FOIA request,’ and ‘where the agency’s search terms are reasonable, the Court will not second guess the agency regarding whether other search terms might have been superior.’”  “Sixth, Plaintiff considers it ‘inconceivable’ that neither the Human Resource Administrator nor Administrative Officer had ‘records requesting absences from work by [the subject AUSA] that would be consistent with the “time-frame” of her surgery,’ . . . and seventh, doubts that, out of 259 emails deemed potentially responsive to his FOIA request, ‘not a single one contained any information regarding [the subject AUSA] and an absence from work,’ . . . .”  “These arguments focus on the results of the search, and a search is not inadequate just because it does not yield the exact information a requester wants.”

• Exemption 6:  The court relates that “[t]he seven pages of responsive records ‘relate[d] to one particular individual, [the subject AUSA], and according to the declarant, . . . they ‘consisted of emails disclosing the underlying medical reasons for [the AUSA’s] leave, [her] condition following a medical procedure and the times when her conditions improved, communications showing when [the AUSA] would need to take leave, the type of work schedule she would be on during her recovery, and the persons with whom she and others shared such sensitive information.’”  “Plaintiff does not dispute that these email messages are ‘personnel and medical files and similar files,’ . . . which apply to a particular individual.”  “Instead, he makes two arguments for their release.”  “First, he asserts that information about [the AUSA’s] surgery already is on the public record: it is mentioned in the publicly available motion to continue his criminal trial.”  “Second, Plaintiff argues there exists a public interest in disclosure which outweighs [the AUSA’s] privacy interest.”  “He contends that the government knew on October 25, 2017, the date of Plaintiff’s arraignment, that [the AUSA] would not be available on January 2, 2018, the date the trial was to begin, intentionally withheld this information, and used [the AUSA’s] absence to justify a continuance to January 29, 2018, . . . ‘exceed[ing] the 70 day statutory maximum in which a trial must begin,’ . . . under the Speedy Trial Act.”  “According to Plaintiff, ‘the public very much has an interest and a right to know [what] the United States Attorney[’]s Office is doing to defendants when it comes to manipulating the law, withholding critical information from courts, disadvantaging defendants all in an attempt to gain a conviction.’”  “Neither argument has merit.”  “It is true that, under the ‘public-domain doctrine, materials normally immunized from disclosure under FOIA lose their protective cloak once disclosed and preserved in a permanent public record.’”  “Consequently, Plaintiff must demonstrate ‘the specific information sought . . . already [has] been disclosed and preserved in a permanent public record.’”  “Even if [the AUSA’s] surgery is mentioned in court documents, public mention of the fact of surgery is far different than the information EOUSA withholds, particularly the underlying medical reasons for [the AUSA’s] absence, post-surgery progress and work schedule, . . . and Plaintiff does not demonstrate that such details have made their way into the public domain.”  “‘Prior disclosure of similar information does not suffice[.]’”  “No more successful is Plaintiff’s assertion of a public interest in disclosure of information about [the AUSA].”  “It is apparent that Plaintiff’s interest is personal: pursuit of claims of Speedy Trial Act and Sixth Amendment violations, . . . which, if proven, purportedly are grounds ‘to dismiss all charges against [him] with prejudice,’ . . . and to order his ‘immediate release from custody’ . . . .”  “In no way do these goals align with FOIA, the principal purpose of which is make public information ‘about the conduct of the agency that has possession of the requested records.’”  “Here, given his focus on a single AUSA and her participation in a single criminal case, it cannot be said that disclosure of information about [the AUSA’s] medical condition either ‘contribut[es] significantly to public understanding of the operations or activities of the government,’ . . . or ‘sheds light on an agency’s performance of its statutory duties’ . . . .”

• Litigation Considerations, “Reasonably Segregable” Requirements:  The court relates that, “[u]nder Exemption 6, EOUSA withholds in full all seven pages of emails gathered in response to paragraphs 1-4 of Plaintiff’s April 2022 FOIA request, . . . and its declarant avers that ‘all material is exempt from disclosure under Exemption 6, [leaving] nothing to segregate’ . . . .”  “Plaintiff contends that the declarant ‘makes no attempt to explain or provide any information that may be non-exempt,’ . . . and presumably faults the declaration as conclusory.”  “While the declaration is short on detail, it still is entitled to a presumption of good faith.”  “It is enough that [defendant] established the information withheld falls within the scope of Exemption 6 and that all of the seven pages of emails contain personnel and medical information about [the AUSA].”