Pitts v. DOJ, No. 19-1784, 2021 WL 4551807 (D.D.C. Oct. 5, 2021) (Berman Jackson, J.)

Pitts v. DOJ, No. 19-1784, 2021 WL 4551807 (D.D.C. Oct. 5, 2021) (Berman Jackson, J.)

Re:  Request for "'the DOJ Report [about] the Minneapolis Police Department concerning the death of Jamar Clark'"

Disposition:  Granting defendants' renewed motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court relates that "CRT represents that 'a search of its record repositories . . . failed to locate a definitive "report" regarding the Minneapolis Police Department and the death of Jamar Clark[.]'"  "Its declarant explains that '[t]he culmination of the Civil Rights Division's investigation into the Minneapolis Police Department and the death of Jamar Clark was not a "report" but merely a Notice to Close File.'"  The court finds that "[w]here and how CRT staff located the Notice to Close File is not described, and there are practically no proffered facts demonstrating the adequacy of CRT's search."  "Yet it appears that the search yielded a responsive record."  "Although the reasonableness of a search is not determined by its results, . . . given plaintiff's apparent lack of interest in litigating his case, the Court will not trouble itself on this point."
   
• Exemption 5, Deliberative Process Privilege & Attorney Work-Product Privilege:  First, the court relates that "[defendant] explains that the Notice to Close File not only 'represents the collective professional deliberations' of CRT attorneys, but also 'evaluates and weighs the feasibility of a prosecution,' . . . culminating in a recommendation to close the matter."  "Thus, CRT adequately demonstrates that the Notice to Close File is predecisional and deliberative."  Second, the court finds that "[b]ecause the Notice to Close File was prepared by attorneys and reflects their impressions, legal theories, personal opinions and recommendations . . . it is apparent that the attorney work product privilege applies."
   
• Exemption 7, Threshold:  The court notes that "CRT 'enforces federal statutes prohibiting discrimination on the basis of race, color, sex (including pregnancy, sexual orientation, and gender identity), disability, religion, familial status, national origin, and citizenship status,' . . . and its declarant explains that the Notice to Close File was compiled for these law enforcement purposes."  "It is clear from defendant's submissions that CRT attorneys were considering whether to prosecute . . . and preparation of the Notice 'is the standard procedure for investigations which do not proceed to a prosecution.'"  "These are law enforcement purposes, and CRT thus demonstrates that Exemption 7 applies."
   
• Exemption 7(C):  "The Court concludes that the third parties mentioned in the Notice to Close File have cognizable privacy interests."  The court explains that "[g]enerally, 'individuals have an obvious privacy interest cognizable under Exemption 7(C) in keeping secret the fact that they were subjects of a law enforcement investigation,' and that interest 'extends to third parties who may be mentioned in investigatory files, as well as to witnesses and informants who provided information during the course of an investigation.'"  Additionally, the court finds that "[i]t is plaintiff's burden to articulate a public interest sufficient to outweigh any individual's privacy interest . . . and he has not met his burden."  "Neither the parties nor the Court identifies a public interest to outweigh the third parties' privacy interests, and the Court concludes that CRT properly relies on Exemption 7(C) to withhold third party information from the Notice to Close File."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court relates that "[a]n attempt to release segregable information would 'leav[e] an unintelligible residual husk after applying' Exemptions 5 and (7)(C)."  "The Court deems this explanation sufficient, and concludes that CRT has released all reasonably segregable information."