Parker v. OPR, No. 15-1070, 2017 WL 3531507 (D.D.C. Aug. 16, 2017) (Boasberg, J.)

Parker v. OPR, No. 15-1070, 2017 WL 3531507 (D.D.C. Aug. 16, 2017) (Boasberg, J.)

Re:  Request for records concerning former Assistant U.S. Attorney

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's cross-motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  The court explains that at issue is "whether OPR should produce [an] attachment – a document that was appended to a previously disclosed . . . [and responsive] letter[.]"  The court finds that, "[c]onsidered alone, it is unclear whether the document is encompassed by [plaintiff's] FOIA request."  "Yet the Court need not decide that issue, as it considers the draft letter's possible responsiveness as an attachment to an already-produced responsive record[.]"  The court finds that "[t]he . . . Letter, in fact, itself touches on the subject matter of the attachment and refers the recipient to examine its contents."  Also, "[w]hile OPR notes that the enclosure was not initially found in the same location as the cover letter, that fact is not dispositive."  "Although there is no per se rule that letters and their attachments must be treated as one, the Court finds that these two pieces belong together."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "the reasons for the five-day-suspension 'recommendation[ ]' fall within the heartland of the privilege."  "The rest of the attachment, however, is not privileged."  "Its introductory paragraph reveals no content other than what the cover letter itself publicly discloses – i.e., that the U.S. Attorney planned to propose a five-day suspension."  "That paragraph then cites federal regulations and agency guidance on suspension procedures, and the later paragraphs describe those rules."  "The Court would be hard pressed to conclude that this disclosure of information about DOJ's disciplinary procedures that are, in substance, already public knowledge would in any way stifle agency deliberations."
   
• Exemptions 6 & 7(C):  "As the Court previously held, OPR may withhold the details of 'internal disciplinary actions considered or taken[,]" but "the rest must be released."  "The attachment's introductory paragraph includes 'specific information in the public domain that appears to duplicate that being withheld' – to wit, the proposal of a five-day suspension."