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Plunkett v. DOJ, No. 11-0341 (RWR), 2013 WL 628546 (D.D.C. Feb. 20, 2013) (Roberts, J.)

Re: Request for records about plaintiff Disposition: Granting in part and denying in part defendant's motion for summary judgment
  • Adequacy of Search: The court concludes that "a factual dispute exists on the adequacy of [defendant's] search" when the declarant "does not claim to have any personal knowledge about the search and he has not proffered" a declaration from the individual who conducted the search. Additionally, "[t]here is no evidence describing the filing systems that were actually searched and the search terms that were utilized. Nor is there any evidence establishing that all files likely to contain responsive records were searched."
  • Exemption 3: The court concludes that the defendant properly withheld documents pursuant to Exemption 3 and Federal Rule of Criminal Procedure 6(e). The records at issue include "'documents specifically identified to the grand jury investigation concerning the murder for hire homicide, including… subpoenas and all records obtained from identified sources in response to said subpoenas… as well as transcripts of grand jury witness testimonies, and identified grand jury exhibits."
  • Exemption 5/Attorney Work-Product Privilege: The court finds that the defendant properly withheld a "27-page jury questionnaire summary prepared by an assistant United States Attorney," which reflects trial preparation.
  • Exemption 7(C): Plaintiff argues that "defendant failed to first ascertain the 'life status' of the third-party individuals." The court notes that "[p]laintiff has not supplied the proof of their deaths that would be expected but, even if [the third parties] are deceased, their privacy interests are not per se extinguished." "Because plaintiff has not asserted a public interest to trigger the balancing requirement, his so-called life status 'argument has no merit.'"
  • Exemption 7(C) & Waiver: The court rejects plaintiff's argument that the information he seeks is already in the public domain. A statement by a witness in an online newspaper article is not an official disclosure. Plaintiff also has not provided a transcript of the testimony or "shown that any statements [a witness] may have made to a newspaper reporter were officially acknowledged."
  • Exemption 7(D): Although the defendant "has not supplied 'probative evidence that [a] source did in fact receive an express grant of confidentiality,'" the court determines "it has provided sufficient information about the investigation, the criminal activity, and the witnesses' relationship to the targets to infer an implied grant of confidentiality."
  • Segregability: The defendant 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 [releasable] portions." The court finds "[d]efendant has demonstrated that it disclosed all reasonably segregable records that are currently at issue."
  • Referral of Records: Because defendant's declaration includes only a mention of the referred records and the defendant "is ultimately responsive for processing any responsive records in its custody and control at the time of the DOA request… summary judgment with regard to the referred records will be denied."
  • Allegations of Bad Faith: "Plaintiff argues through his opposition that defendant has acted in bad faith, but he does not make clear in what material way the defendant acted in bad faith." The defendant "reasonably interpreted the narrowed request…as excluding" documents related to a narcotics incident which did not appear to be related to the subject of his request. "'[I]nitial delays in responding to a FOIA request are rarely, if ever, grounds for discrediting later affidavits by the agency'' and the plaintiff "has failed to offer any evidence to rebut the 'presumption of good faith' accorded agency declarations."
Court Decision Topic(s)
Litigation Considerations, Adequacy of Search
District Court opinions
Exemption 3
Exemption 5
Exemption 7(C)
Exemption 7(D)
Procedural Requirements, Consultations and Referrals
Updated August 6, 2014