Miccosukee Tribe of Indians of Fla. v. DOJ, No. 14-20643, 2015 WL 1649957 (S.D. Fla. Apr. 14, 2015) (Altonaga, J.)

Miccosukee Tribe of Indians of Fla. v. DOJ, No. 14-20643, 2015 WL 1649957 (S.D. Fla. Apr. 14, 2015) (Altonaga, J.)

Re: Request for records concerning plaintiff's former attorney who was also former Director of EOUSA

Disposition: Granting defendant's motion for summary judgment in part; denying plaintiff's motion for summary judgment; dismissing plaintiff's claims against OIG and OIP

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that "[t]he only claim in this case [plaintiff] has actually exhausted is its claim regarding the OPR, as [plaintiff] appealed the OPR's determination and received a decision on appeal."  "Additionally, [plaintiff] has constructively exhausted its claims regarding the OTJ and EOUSA" because it did "not receive a determination within 20 days" and, therefore, was "deemed to have exhausted its administrative remedies."  However, the court finds that, "[a]s for the OIG and OIP, although [plaintiff] alleges . . . [that] it has not received a response from either . . . the evidence—which [plaintiff] does not dispute—shows the OIG . . . and the OIP responded."  "[Plaintiff] still has not appealed these determinations despite the determinations' advising of [plaintiff's] right to appeal."  "Consequently, [plaintiff] has failed to exhaust its administrative remedies as to the OIG and OIP, and therefore [plaintiff's] claims with respect to the OIG and OIP must be dismissed as premature."
   
• Exemptions 6 and 7(C), Glomar:  The court holds that "OPR, OTJ, and EOUSA's Glomar responses were proper under Exemption 7(C)."  "[T]he court [first] finds  the existence, or non-existence, of the records [plaintiff] is seeking has not been publicly disclosed."  The court reviews the subject's testimony and finds that it "says nothing about the existence, or non-existence, of records relating to any alleged wrongdoing or malfeasance on his part, or any investigation, internal inquiry, or discipline against him."  "In the deposition testimony, all [the subject] revealed was he was never fired or terminated from employment, and he left his position at the EOUSA voluntarily."  "His testimony says next to nothing about any wrongdoing or malfeasance on his part, or any investigation, internal inquiry, or discipline against him."  The court then finds that "[g]iven the statements in [defendant's] Declaration, as well as [plaintiff's] allegations [the subject] misused public funds and committed theft (however unsubstantiated those allegations may be) . . . the Court finds the records [plaintiff] seeks, if they exist, would have been compiled for law enforcement purposes."  The court relates that defendant "explains the records [plaintiff] seeks, 'if any such records exist, ... would be maintained in an investigative records system that contains records compiled for law enforcement purposes,' including for use in investigations that 'could result in civil, criminal, or administrative penalties.'"  The court then finds that "[the subject] . . . has a substantial privacy interest under Exemption 7(C)" and "[his] testimony about why he voluntarily left the EOUSA does not open the door to all matters potentially related to his employment at the EOUSA, especially matters that could associate him with criminal activity."  The court then finds that plaintiff has not demonstrated that there is a public interest in disclosure of this information because "the requester must proffer a reason for the request based on more than unsubstantiated allegations of misconduct" and "requester's interest in ascertaining the veracity of testimony is not a cognizable public interest where there is no indication the testimony is untruthful."  The court also holds that, regarding OPR's use of Exemption 6 in addition to Exemption 7(C), "just like in the Exemption 7(C) context, '[m]ere speculation about hypothetical public benefits cannot outweigh a demonstrably significant invasion of privacy.'"