Pearce v. Dep’t of the Army, No. 24-520, 2025 WL 1905552 (D.D.C. July 10, 2025) (Sooknanan, J.)

Pearce v. Dep’t of the Army, No. 24-520, 2025 WL 1905552 (D.D.C. July 10, 2025) (Sooknanan, J.)

Re:  Request for records concerning plaintiff’s EEOC proceeding

Disposition:  Granting defendant’s motion for summary judgment

• Exemption 5, Attorney-Client Privilege:  The court relates that, “[h]ere, the Army invokes the attorney-client privilege to partially redact portions of the EEOC summary judgment briefing, deposition transcripts, and exhibits.”  “It redacted material regarding consultations with its Office of Counsel; communications about legal conclusions; recommendations between attorneys and agency clients on issues such as government ethics, employment litigation, and personnel matters; ongoing procurement litigation; and [plaintiff’s] assignment tracker while she was an agency attorney.”  The court finds that “[t]hese are quintessential attorney-client communications shielded from disclosure under FOIA’s Exemption 5.” “In response, [plaintiff] points out that the partially redacted documents were ‘filed in the EEOC litigation and ones which [she] now has the ability to review and use in support of her case pending in the Middle District of Florida.’”  “To the extent she is arguing that the Army waived attorney-client privilege by providing her with these documents in the EEOC administrative proceedings, she is incorrect.”  “‘[A] plaintiff asserting a claim of prior disclosure must bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld.’”  “Here, the requested information was made available to [plaintiff] in discovery in her EEOC administrative proceedings.”  “That falls far short of what is required to waive privilege.”
   
• Exemption 5, Attorney Work-Product Privilege:  The court relates that, “[h]ere, the Army partially redacted and withheld documents as work product, including deposition transcripts and exhibits that referenced ‘legal strategies and details regarding ongoing litigation or potential personnel matters that may result in litigation,’ ‘work on ongoing procurement litigation, fiscal law and government ethics advice, and particular cases of personnel and employment litigation.’”  The court finds that, “[a]s materials ‘prepared in anticipation of litigation,’ . . . the Army properly redacted and withheld them as attorney work product.”  “The Army also invoked the work-product doctrine to partially redact and withhold material in [plaintiff’s] summary judgment motion and certain deposition exhibits about a potential settlement agreement that was never finalized.”  “The work-product privilege shields this material from disclosure.”
   
• Exemption 5, Deliberative Process Privilege:  The court relates that “[t]he Army partially redacted [plaintiff’s] summary judgment motion and certain deposition exhibits to withhold information about a settlement proposal and draft settlement agreement that it sent to [plaintiff] while she was still employed at the agency.”  “The Army’s declarant explained that ‘[b]ecause a final decision had not yet been made, the drafts and proposals contained information that the [a]gency would deliberate on before potentially reaching an ultimate decision on settlement and the terms of the Plaintiff’s departure.’”  “The Army also redacted one witness exhibit containing confidential information about litigation strategies.”  “The material in question is both predecisional and deliberative, as it does not show the agency’s ‘ultimate decision on the terms of its non-continuation of Plaintiff’s employment,’ . . . and it reflects ‘the give-and-take of the consultative process’ . . . .”
   
• Exemption 6:  The court relates that, “[h]ere, the agency partially redacted and withheld various categories of personal information in the EEOC summary judgment briefing, certain deposition transcripts, and certain exhibits, including ‘names, gender pronouns, dates of birth, place[s] of birth, personal residences, telephone number[s], work address[es], work location[s], email addresses, medical information, family histories, marital status, leave schedules, employment history, school information, professional titles, and details about work assignments.’”  “With no discernable public interest in disclosure of this highly personal information, the Court ‘need not linger over the balance; something . . . outweighs nothing every time.’”  “But another fact tilts any balancing even further in the Army’s favor.”  “The judge presiding over [plaintiff’s] administrative EEO proceedings entered a protective order permitting the agency to designate specific discovery material as ‘confidential,’ thus restricting it from disclosure ‘for any purpose whatsoever other than to prepare for and to conduct discovery and hearing in [that] action, including any appeal thereof and any subsequent litigation in federal court of the same claims raised in [that] complaint.’”  “And the Army’s declarant has explained that the witnesses fear that disclosure ‘would allow individuals to harass or attempt to befriend’ them and ‘seriously prejudice their effectiveness in conducting legal representation of the Agency, advising Agency clients in sensitive and confidential matters, and performing day-to-day work.’”
   
• Exemption 7, Threshold:  The court holds that “[t]he investigation at issue here was carried out because of the EEO proceeding [plaintiff] commenced alleging that the Army engaged in discrimination and retaliation.”  “The purpose was to determine whether the Army violated civil rights laws.”  “The Court thus finds that the investigation was carried out to enforce federal civil rights laws and thus had a law enforcement purpose.”
   
• Exemption 7(C):  The court relates that “[t]he Army partially redacted ‘names, addresses, personnel actions, and medical information of witnesses and deponents’ under Exemption 7(C) in the EEOC summary judgment briefing, certain deposition transcripts, and certain exhibits, arguing that this ‘personal information . . . would constitute an unwarranted invasion of personal privacy if disclosed[.]’”  “On one side of the ledger, the Army’s declarant has explained that ‘disclosing the names of the individuals involved would cause foreseeable harm by subjecting such individuals to annoyance or harassment in their private lives.’”  “And the information withheld under Exemption 7(C) ‘would have a significant negative effect on the willingness of [a]gency employees to participate or provide statements in future cases, negatively affecting the [a]gency’s ability to fairly and justly investigate and adjudicate these cases.’”  “On the other side, [plaintiff] appears to raise the same argument that she did under Exemption 6, arguing only that ‘there is a public interest . . . to be served in disclosing the subject material showing the degree to which [the] Agency is functioning, identifying those involved in the decision-making process, and demonstrating the extent to which the Agency is complying with its statutory responsibilities.’”  “On balance, the Court finds that the Army properly redacted this personal identifying information under Exemption 7(C).”
   
• Exemption 7(D):  The court relates that, “[h]ere, the agency relied on Exemption 7(D) to withhold in full three records – declarations from Army employees made during the EEOC investigation about [plaintiff’s] termination.”  “The Army also redacted portions of certain deposition transcripts and exhibits on the same basis.”  “According to the Army’s declarant, it obtained declarations and deposition testimony from these individuals by providing specific assurances of confidentiality:  In order ‘to successfully obtain the desired information through an interview’ and allay concerns of the witnesses ‘that [their] identit[ies] will possibly be associated with said investigation,’ the witnesses ‘were assured that their names and personal identifying information would be held in confidence.’”  “And ‘the information provided by individuals during an EEO investigation into discrimination is a key tool to uncover potentially inappropriate and discriminatory or retaliatory actions within a federal agency.’”  “On these facts, the Army has adequately justified its Exemption 7(D) withholdings.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  The court finds that “[t]he Army has met its burden by providing a Vaughn index and ‘a declaration attesting that the agency released all segregable material.’”  “The Army’s declarant explained that she ‘ensured that the [a]gency reviewed the documents line by line and confirm[ed] that the non-exempt portions were segregated from the exempt portions and the non-exempt portions were produced.’”  “And she ‘considered whether exempt portions could be released and determined that they could not be further released without incurring reasonably foreseeable harm[.]’”  “[Plaintiff] questions the ‘foreseeable harm’ of many of the redactions given that her ‘civil rights claims are in litigation in a federal district court.’”  “But because the release of documents in discovery and under FOIA are not coextensive . . . this argument does not provide the ‘quantum of evidence’ needed at this stage . . . .”