Plunkett v. DOJ, No. 11-0341, 2015 WL 5159489 (D.D.C. Sept. 1, 2015) (Moss, J.)

Plunkett v. DOJ, No. 11-0341, 2015 WL 5159489 (D.D.C. Sept. 1, 2015) (Moss, J.)

Re: Request for records concerning plaintiff's prosecution and conviction

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

• Litigation Considerations, Adequacy of Search:  The court denies defendant's motion for summary judgment as to the adequacy of its search.  The court relates that it previously denied defendant's motion for summary judgment because defendant's declarant "lacked personal knowledge of the search and because, in any event, his declaration did not describe what systems were actually searched or the search terms that were utilized."  The court notes that "[t]he Department has now submitted a declaration from a knowledgeable witness describing the search for records."  The court finds that "nothing in the record suggests that EOUSA failed to conduct a complete search for records responsive to Plaintiff's revised FOIA request due to [a] fee limitation."  However, "[b]ecause a reasonable question exists regarding the contents of . . . two binders and whether they contained any material responsive to Plaintiff's broad FOIA request, further clarification is necessary before the Court can resolve this matter on summary judgment."
   
• Exemption 7, Threshold:  "[T]he Court has already concluded that 'the requested records concerning plaintiff's criminal prosecution are law enforcement files subject to review under FOIA exemption 7.'"
   
• Exemption 7(C):  The court holds that defendant's use of Exemption 7(C) was proper.  The court relates that "[p]laintiff does not challenge EOUSA's representation that the records at issue were compiled for law enforcement purposes and implicate the personal privacy of third parties."  "Rather, he argues that the redacted materials should nonetheless be produced because there is an 'overriding public interest in exposing the wrongdoings and criminal activity being perpetuated.'"  However, the court finds that "[plaintiff] has failed to produce any evidence that would permit a reasonable person to believe that a conspiracy existed to alter official court records, including the exhibit list and official transcript of his trial."  Additionally, the court finds that "[p]laintiff's contention that his trial was tainted by one or more Brady violations will not suffice to overcome Exemption 7(C) on the present record."
   
• Exemption 7(D):  The court holds that defendant's use of Exemption 7(D) was proper.  The court relates that "[i]n its prior decision, the Court approved the withholding of confidential informant records under exemption 7(D) in light of the fact that these records pertain to an investigation of a 'murder for hire conspiracy.'"  "Although the document that EOUSA now identifies as subject to Exemption 7(D) apparently relates to narcotics charges, and not the murder for hire charge, . . . the Court's prior rationale applies with equal force."
   
• Waiver:  The court rejects plaintiff's waiver argument.  The court finds that "[p]laintiff has proffered nothing to warrant reconsideration of the Court's previous conclusion that he had not sustained his burden by showing a prior official disclosure of the information he contends is in the public domain."
   
• Exemption 5:  "Because the Vaughn index establishes that [one] Document . . . is work product, the Court will grant summary judgment to the Department on its application of Exemption 5 to the withheld document."  The court relates that the document consists of "notes . . . described as those [that] an assistant United States attorney 'made during review of [a] document, [and] reflect[ed] [an] analysis of importance/non-importance as part of [the] investigation.'"
   
• Litigation Considerations, Vaughn Index/Declaration:  "[T]he Court must deny summary judgment as to the records that were previously referred to BOP."  The court explains that "the declaration does not address whether [EOUSA] processed and accounted for all of the records returned from the BOP, and the Court is simply left to guess which, if any, documents were not produced in full, and, to the extent records were withheld in whole or in part, which FOIA exemptions the Department relies upon."  However, "the Court will grant summary judgment with respect to the records that were referred to the Marshals Service."  The court explains that "the declaration submitted by the Marshals Service establishes that the six pages referred to it were released to Plaintiff . . . with third-party identifying information properly redacted under Exemption 7(C)."

Regarding plaintiff's bad faith arguments, the court finds that "[n]one of Plaintiff's arguments about his criminal trial and its aftermath go to whether the Department fulfilled its obligations to search for and to produce relevant documents in response to Plaintiff's FOIA request, and none of his speculative claims about what transpired during and after his criminal trial suffices to undermine the presumption of good faith accorded to the declarations relied upon by the Department."

• Litigation Considerations, "Reasonably Segregable" Obligation:  The court holds that, "[f]or the most part, the second [defendant] declaration and accompanying index meet [defendant's] burden."  "The declaration asserts that each document was 'evaluated to determine if any information could be segregated and released' and that the 'documents withheld in their entirety contained no meaningful portions that could be released without destroying the integrity of the document or without identifying a third party individual or confidential informant.'"  "As to one entry, however, the Court concludes that the Department has not made the required showing."  "Before the Court can further address the application of Exemption 7(D) to these records, the Department must provide further detail regarding its redactions, including, for example, identifying 'what proportion of the information in the document is non-exempt and how that material is dispersed throughout the document.'"