Skip to main content

Sarras v. DOJ, No. 19-0861, 2023 WL 6294164 (D.D.C. Sept. 27, 2023) (Cooper, J.)

Date

Sarras v. DOJ, No. 19-0861, 2023 WL 6294164 (D.D.C. Sept. 27, 2023) (Cooper, J.)

Re:  Request for records concerning plaintiff

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

  • Litigation Considerations, Adequacy of Search & Procedural Requirements, Searching for Responsive Records:  The court holds that “[DOJ Criminal Division's Office of Enforcement Operations (“OEO”)’s] supplemental search, which it undertook in response to [plaintiff’s] 2016 FOIA request, was adequate.”  The court finds that “[t]he two . . . declarations set forth the searches each OEO unit performed, including the databases reviewed and the search terms and dates used, and explain each unit’s decisions about which databases and custodial records to search.”  The court also finds that defendant “attest[s] that ‘all files likely to contain responsive materials . . . were searched.’”  The court then considers plaintiff’s objections.  “First, OEO is not required to provide screenshots or other proof that searches yielded no results.”  “Absent ‘countervailing evidence or apparent inconsistency of proof,’ which [plaintiff] has not produced, ‘affidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA.’”  “Second, even though OEO used the date of its original search as the cut-off date for the supplemental searches, rather than the dates of the supplemental searches, this does not foreclose the adequacy of OEO’s search.”  “D.C. Circuit courts have ‘routinely’ found that an original ‘date-of-search cut-off’ is ‘reasonable,’ even for searches performed after that date.”  “Third, D.C. Circuit courts have rejected the contention that agency affidavits must provide detailed ‘information regarding the actual databases or indices searched.’”  “‘FOIA does not demand this degree of detail.’”

    “Separate from his challenge to the supplemental search, [plaintiff] moves for summary judgment on the grounds that OEO failed to adequately search [the Criminal Division's International Prisoner Transfer Unit (“IPTU”)] files as requested in [plaintiff’s] May 2016 request.”  “The Court now makes explicit what was implicit in its prior opinion:  OEO adequately searched IPTU’s files in response to the May 2016 request.”  “As the Court noted previously, OEO adequately ‘described the search terms used and search performed.’”  “And OEO submitted an affidavit confirming that all IPTU files ‘likely to contain responsive materials . . . were searched.’”  “Specifically, OEO’s affiant . . . averred that it is ‘the policy of IPTU to place all documents,’ including ‘all email communications’ involving a prisoner’s transfer request, ‘inside the prisoner’s case file.’”  “Given this policy, it was perfectly reasonable for IPTU to conclude that a search of [plaintiff’s] case file would contain all the IPTU records responsive to the May 2016 request.”
     
  • Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations:  The court relates that defendant withheld “(1) the FOIA/PA Unit’s processing notes, (2) a cover sheet for a [Special Operations Unit (“SOU”)] memorandum, and (3) two IPTU memoranda about [plaintiff’s] treaty transfer request (which were also at issue in the last round of summary judgment briefing).”  “The Court determines the three sets of documents fall within the deliberative process privilege and grants the government’s motion for summary judgment as to the Exemption 5 withholdings of those documents.”  Regarding the processing notes, first, the court finds that “[a] FOIA/PA Unit staff member created the notes while processing records in response to [plaintiff’s] May 2016 request, and the notes include ‘processing recommendations,’ ‘analysis and assessments regarding applicable exemptions,’ and ‘research intended to assist the decision maker,’ namely the FOIA/PA Unit Chief or Deputy Chief.”  “Because [plaintiff] has submitted additional FOIA requests that are still pending, OEO ‘continue[s] to rely on recommendations and assessments within these processing notes to make present day processing recommendations and disclosure evaluations.’”  “[Plaintiff] does not argue that the notes lost their deliberative process privilege because OEO adopted their reasoning when it released documents in response to [plaintiff’s] May 2016 request.”  “Rather, he contends that the notes lost their privilege because the notes, themselves, constitute OEO’s ‘policy’ for responding to [plaintiff’s] still open FOIA requests.”  “The FOIA/PA staffer’s ‘recommendations and assessments’ are not OEO ‘policy.’”  “Even if the FOIA/PA Unit uses the notes to evaluate documents in response to [plaintiff’s] open FOIA requests, the notes are still recommendations from a staffer to a superior.”  “Second, [plaintiff] seeks production of portions of a SOU cover sheet (Document 1) that are redacted pursuant to Exemption 5.”  “The Court finds that the deliberative process privilege applies to the redacted information.”  “The FBI had submitted to SOU a request to employ a bodywire as part of an investigation into [plaintiff].”  “Before SOU authorized the bodywire, FBI sent a notice to SOU that it was withdrawing its request.”  “The Exemption-5-redacted portions of Document 1 reflect the SOU staff member’s recommendation for approving the FBI's withdrawal request.”  “Finally, [plaintiff] challenges OEO’s application of the deliberative process privilege to two IPTU memoranda (Documents 8 and 37), which were also at issue in the previous round of summary judgment briefing.”  “Both memoranda contain IPTU attorneys’ analysis and recommendations regarding [plaintiff’s] prisoner transfer request.”  “OEO released both documents in substantial part, with redactions of only certain information ‘prepared by the IPTU attorney’ or ‘reflecting the summarization and analysis of the attorney.’”  “After its 2021 opinion, the Court directed the government to address [plaintiff’s] contention that the withheld information in the memoranda had lost its predecisional character – and therefore its privilege protection – because the ‘agency [had] adopt[ed] the document as its own.’”  “The Court finds that the OEO Directors, who served as the final decisionmakers for [plaintiff’s] transfer request, did not adopt the withheld portions of Documents 8 and 37 as their own.”  The court relates that “[defendant] averred, ‘[t]he withheld information contains facts, analysis, and detailed thoughts and considerations of the author not adopted by the decision maker.’”

    [T]he Court has previously determined that OEO demonstrated that [the document’s] disclosure would cause foreseeable harm.”
     
  • Exemption 6:  The court relates that “[plaintiff] challenges OEO’s withholding of IPTU employees’ names and identifying information in records released from December 2021 to December 2022.”  The court finds that “OEO properly withheld the names and identifying information of IPTU employees under Exemption 6.”  “First, disclosure would compromise the IPTU employees’ substantial privacy interest.”  “As OEO explained, the IPTU employees are responsible for ‘reviewing the details of [ ] treaty transfer files and making recommendations . . . [about] whether an individual should complete his or her sentence in the United States.’”  “As a result, the release of the employees’ personal information ‘could subject them to harassment and unwanted publicity.’”  “Given the IPTU staff’s “sensitive law enforcement duties,’ . . . they face more than the ‘remote possibility of harassment’ . . . .”  “Second, the IPTU employees’ privacy interests outweigh the public’s need to learn their names.”  “The employees are ‘non-public-facing employees’ and ‘do not hold leadership positions.’”  “And OEO did release the names of OEO employees who serve in a supervisory capacity or hold leadership positions.”  “The Court, therefore, finds that OEO properly withheld the names and identifying information of lower-level IPTU employees in the records released from December 2021 to December 2022.”
     
  • Litigation Considerations, Vaughn Index/Declaration:  The court holds that “[b]ecause of defects and inconsistencies in the government’s productions, affidavits, and indexes, the Court must reserve judgment on the remainder of the withholdings in the government’s supplemental search releases.”  “Specifically, there are three issues that preclude summary judgment:  (1) some of OEO’s productions were not paginated and contained fully redacted pages with no claimed exemptions, (2) OEO failed to clarify which documents from its February 2022 release were duplicates of an earlier release, and (3) the government has not adequately explained which documents the FBI reviewed and redacted.”

    “Finally, the Court grants the government’s summary judgment motion as to the record referred to the Department of State.”  “In its previous opinion, the Court requested clarification about whether the second page, in a two-page record referred to the State Department, ‘remain[ed] to be produced or was withheld pursuant to a privilege.’”  “OEO has since clarified.”  “[Defendant] explained that the two pages in the State Department referral were a verbal notice and a photocopy of an envelope.”  “Initially, the State Department processed only the verbal notice and issued it to [plaintiff] with redactions.”  “After the Court’s August 2021 opinion, OEO requested that the State Department process the envelope.”  “The State Department complied, and OEO produced the envelope to [plaintiff] without redactions.”  “Since the government has now produced the second page, it is entitled to summary judgment as to that record.”
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Exemption 6
Litigation Considerations, Adequacy of Search
Litigation Considerations, Foreseeable Harm Showing
Litigation Considerations, Vaughn Index/Declarations
Procedural Requirements, Searching for Responsive Records
Updated November 3, 2023