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Selgjekaj v. EOUSA, No. 20-2145, 2021 WL 3472437 (D.D.C. Aug. 6, 2021) (Cooper, J.)


Selgjekay v. EOUSA, No. 20-2145, 2021 WL 3472437 (D.D.C. Aug. 6, 2021) (Cooper, J.)

Re:  Request for records concerning plaintiff's 2013 indictment in the Northern District of Ohio

Disposition:  Granting in part and denying in part defendants' motion for summary judgment; denying plaintiff's motion for summary judgment

  • Litigation Considerations, Adequacy of Search:  "On this record, the Court cannot definitively determine whether EOUSA's search for records responsive to [plaintiff's] 2018 FOIA request was 'reasonably calculated to uncover all relevant documents.'"  The court finds that "[the] declarations fall short of establishing beyond genuine dispute that EOUSA conducted a reasonable search."  "EOUSA's declarants say nothing about whether the agency has other files or databases that were not searched but would likely contain responsive records."  "Nor do the declarations 'identify the terms searched or explain how the search was conducted,' . . . beyond identifying the places searched and pointing to EOUSA's '[g]eneral[ ]' practice of searching by 'name and keyword' . . . ."
  • Exemption 7(C):  "[T]he Court is satisfied that Exemption 7(C) justifies the redactions from the Criminal Designation Form and attachments."  "The parties do not appear to dispute, nor does the Court doubt, that the redacted records were compiled for law enforcement purposes."  "EOUSA has also shown that removing its redactions 'could reasonably be expected to constitute an unwarranted invasion of personal privacy.'"  "Disclosure of the 'names, address[es,] and telephone number of [Assistant U.S. Attorneys], legal assistants, law enforcement officers,' and other individuals mentioned in law enforcement records would clearly implicate 'cognizable privacy interests.'"  "[Plaintiff] has not identified any specific public interest for the Court to balance against these privacy interests."  "It was appropriate for EOUSA to group its redactions of personal information together in the Vaughn index and provide a single rationale for redacting such information throughout the Criminal Designation Form and attachments. And the record shows that 'EOUSA's staff conducted a detailed, line-by-line review' of the responsive records located in the agency's search."
  • Exemption 5, Attorney Work-Product Privilege & Other Considerations:  "The Court finds that [one document in question] is protected by the attorney work-product privilege and therefore falls within Exemption 5."  "The record in this case shows that the 'jacket to the case file for the prosecution of [plaintiff]' contains 'notes that, if disclosed, would reveal the government Attorneys' legal strategies, research, opinion, and legal impression of the strength or weakness of their criminal case against [plaintiff].'"  Regarding foreseeable harm, the court finds that "[a] court may find the requirement satisfied if '[t]he very context and purpose of' the withheld document “make the foreseeability of harm manifest.'"  "Here, the record shows that the file jacket was prepared in contemplation of a complex financial fraud prosecution."  "It is hardly debatable that the government's ability to prosecute such cases would be impeded if its attorneys were deprived of 'a ‘zone of privacy' within which to think, plan, weigh facts and evidence, candidly evaluate a client's case, and prepare legal theories.'" 
  • Litigation Considerations, "Reasonably Segregable" Requirements:  The court finds that "EOUSA has established that it complied with its obligation to release '[a]ny reasonably segregable portion of' the records it located that contained exempt material."  "[Defendant] avers that '[i]n reviewing the responsive material, EOUSA's staff conducted a detailed, line-by-line review' and found that '[t]he responsive material was either exempt itself or was so intertwined with non-exempt information that segregation of the non-exempt information was not reasonably possible without revealing exempt information or leaving nothing but meaningless words or sentence fragments.'"  "This attestation is satisfactory."
  • Exemption 3:  The court holds that "EOUSA need not search for '[t]ranscripts of the instructions and charges given to any Grand Jury that heard evidence in this matter,' . . . as those transcripts are 'the prototypical grand jury material exempt from disclosure under Rule 6(e)[ ] and are thus protected from disclosure by Exemption 3.'"  "'Similarly, for the attendance records that Plaintiff seeks, their disclosure would require revealing "the identities of . . . jurors," which is also foreclosed by Rule 6(e).'"  "By contrast, to the extent [plaintiff] seeks '[a]ll orders that reflect the Commencement, Termination, and any extensions of the Grand Jurys that heard evidence in this matter,' . . . it is 'not immediately evident why such orders would "tend[ ] to reveal some secret aspect of the grand jury's investigation."'"  "Moreover, the record does not establish whether EOUSA's initial failure to search for these orders was cured by its belated 'supplemental search.'"  "Accordingly, the Court has too little information to grant summary judgment to either side on the issue of [plaintiff's] request for orders commencing, terminating, or extending grand juries."  "If EOUSA renews its summary judgment motion on this issue, it must submit more detailed affidavits showing that it conducted a search reasonably calculated to find all such orders; that EOUSA individually reviewed any such orders uncovered by the search; and that, if any such orders are withheld, the agency has valid, particularized reasons for those withholdings."
Court Decision Topic(s)
District Court opinions
Exemption 3
Exemption 5
Exemption 5, Attorney Work-Product Privilege
Exemption 5, Other Considerations
Exemption 7(C)
Litigation Considerations, Adequacy of Search
Litigation Considerations, “Reasonably Segregable” Requirements
Updated November 5, 2021