Neese v. DOJ, No. 19-01098, 2022 WL 898827 (D.D.C. Mar. 28, 2022) (Nichols, J.)

Neese v. DOJ, No. 19-01098, 2022 WL 898827 (D.D.C. Mar. 28, 2022) (Nichols, J.)

Re:  Request for records concerning plaintiff

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

• Litigation Considerations, Adequacy of Search:  "OPR conducted a reasonable search."  "Its declarations show that 'it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.'"  "Since [plaintiff] never identified particular locations that the agency should look, OPR acted reasonably in deciding 'to confine its inquiry to [its] central filing system.'"  "[Plaintiff's] arguments to the contrary miss the mark."  "First, she notes that it took more than a year following her submission for OPR to conduct its initial search."  "But while this delay is troubling, it does not go to the adequacy of the search that OPR did eventually conduct."  "[Additionally,] [w]hile [plaintiff] has some objections about [OPR's failure to locate a document that was referred to another agency], that does not go to the adequacy of the search conducted by OPR."  "Next, [plaintiff] notes that the initial search conducted by OPR was necessarily incomplete, as OPR has since supplemented its initial search with more recently discovered responsive records."  "But 'continuing discovery and release of documents does not provide that the original search was inadequate, but rather shows good faith on the part of the agency that it continues to search for good documents.'"  "Indeed, the Court of Appeals has explained that it 'would be unreasonable to expect even the most exhaustive search to uncover every responsive file.'"  "Supplemental searches and productions are not only proper, but often necessary."
  
  "Finally, [plaintiff] argues that OPR conducted an inadequate search by using as a cutoff date the date of her request, and then supplementing it with another search a year later."  "Yet it is not up to this Court to order supplemental searches after the initial search date; a responding agency is under no obligation to search for records created after the date of the FOIA request."  "This makes sense: a FOIA request seeks documents that exist at a specific moment in time."  "It does create an unending obligation to collect and produce all documents created in the future."
   
• Procedural Requirements, Consultations and Referrals:  "[The] documents [referred to other DOJ components] are not before the Court on this Motion."  "Indeed, the Court asked the Parties if they thought it more appropriate to wait until all productions had been made before resolving this Motion."  "Both said no."  "Thus, because OPR can refer documents to other DOJ components, whether required to or not, the Court sees no merit to [plaintiff's] objection that it did."
   
• Exemption 3:  "[T]he Court finds that Exemption 3 was properly invoked to protect grand-jury materials."  "The [OPR] Declaration details how the material would tend to reveal secret aspects of the investigation, like witness identities." 
   
• Exemption 5, Deliberative Process Privilege:  "[Plaintiff argues that the deliberative process privilege does not apply because] [t]his matter did not involve Executive Branch policy making or deliberations . . . .'"  "But she cites no case for this narrow view of the deliberative-process privilege, and the Court cannot find any on its own."  "Rather, an agency need only demonstrate that the information is predecisional and deliberative to some policy or decision."  "The information redacted under exemption 5 . . . 'contains internal, pre-decisional information revealing attorney opinions and thought processes on the handling of OPR's investigation, the disclosure of which would disclose internal pre-decisional discussions and chill full and frank exchange among OPR attorneys.'"   "That is a valid application of the privilege."  "Having reviewed each of the redactions made under Exemption 5, the Court concludes, from its inspection of the Vaughn Index and the relevant declarations, that OPR's explanations were full and specific enough to give [plaintiff] a meaningful opportunity to contest each one, and to give this Court enough foundation to conclude that each withholding was sound." 
   
• Exemption 7, Threshold:  "There is a long history of FOIA requesters attempting to get documents regarding OPR investigations, and of OPR attempting to invoke exemption 7(C) to withhold such records."  "[However, here plaintiff] 'resigned her position as an AUSA shortly after OPR initiated its inquiry and therefore was no longer a Department of Justice employee,' during its pendency."  "The sanctions to be imposed, if any, could only be external."  "('[The allegations], if proved, could result in civil sanctions, such as referral to state bar licensing authorities.').  "Since OPR has shown that exemption 7(C)'s threshold requirement is met, the Court next turns to balancing." 
   
• Exemption 7(C):  "The first category of information that OPR redacted was the '[n]ames and other identifying information of FBI Agents and OPR, EOUSA, and USAO [s]taff.'"  Defendant explained that "'disclosure of this information in connection with an OPR misconduct investigation or the USAO's Operation Pain Train criminal investigation could expose these employees to unwanted attention, notoriety, or harassment.'"  "The declaration further details how disclosing the names of FBI agents, in particular, could severely impact their abilities to conduct their jobs."  "While the public might have an interest in how OPR works, that interest does not extend to the contact information of various low-level employees."  "The Court agrees with this analysis."
  
  "The next category of information that OPR redacted was the 'names and other identifying information of third parties incidentally mentioned.'"  "OPR explained the commonsensical reasons why these individuals have a privacy interest in keeping this information private."  "And it explained how there is no public interest in that same information."  "The Court again agrees with its analysis."
  
  "OPR also redacted 'identifying information about the complainant and third parties personally associated with the complainant.'"  "As OPR explained, it keeps information about complaining witnesses confidential in order to 'encourage individuals to provide the most accurate and frank information without fear of being identified and becoming a target for retaliation.'"  "OPR claims that this interest outweighs the public's interest in this small category of information."  "The Court again agrees." 
  
  Next, OPR redacted 'names and identifying information of witnesses and third parties connected with Operation Pain Train.'"  "OPR explained, '[i]dentifying a private citizen in connection with a criminal or misconduct investigation is likely to engender speculation, could stigmatize the individual, and could subject them to harassment or criticism.'"  "That outweighs the public's interest, if any, in that information." 
  
  "Finally, OPR redacted the 'names and identifying information of subjects of other OPR investigations.'"  "For many of the same reasons discussed above, the privacy interest of these individuals outweighs the public's interest, as OPR has detailed in its declaration."
   
• Exemption 7(E):  "The FBI used exemption 7(E) to withhold . . . methods used by the FBI to collect and analyze information it obtains for investigative purposes."  "While the government's burden is low, it has failed to demonstrate how release of the requested information might create a risk that the law is circumvented."  "The government merely regurgitates the statutory test, explaining how the release of this information would disclose the identity of the methods it used to collect and analyze information, including where it collects information and the methodologies it uses to analyze it once collected."  "Thus, it explains, disclosure would enable subjects of FBI investigations to circumvent similar currently used techniques."  "The Court has not been told what procedures are at stake."  "And the Court has not been told how disclosure of these documents would reveal such procedures."  "Thus, because '[t]he [FBI] Declaration lacks any case-specific, meaningful explanation as to how any particular technique, procedure or guideline at issue in this case would make it easier for individuals to evade the law,' the Court will deny its Motion on this point." 
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "But the FBI determined that any nonexempt information was so intertwined with the exempt information that it could not be reasonably segregated."  "Indeed, it would take many resources to produce disjointed words and phrases, which on their own would have no informational content."  "The FBI properly concluded it need not do this."