Sheppard v. DOJ, No. 17-01037, 2019 WL 3577699 (W.D. Mo. Aug. 6, 2019) (Smith, S.J.)

Sheppard v. DOJ, No. 17-01037, 2019 WL 3577699 (W.D. Mo. Aug. 6, 2019) (Smith, S.J.)

Re:  Request for certain records concerning explosion that killed several firefighters

Disposition:  Denying defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "DOJ's declaration, with few exceptions, does not provide specifics about the nature and scope of its search."  "The DOJ identified . . . the section 'most likely to maintain responsive records.'"  "But the DOJ provides little information about the 'search request' it sent to [that section]."  "By way of example, the declaration does not identify which individuals in the [section] received the records request."  "Similarly, the declaration is silent as to which offices, locations, and/or units of the [section] received the records request."  "Additionally, regarding [the section], the declaration does not indicate, for example, the types of searches that were conducted; the parameters of the searches; whether electronic and/or physical documents were searched; the custodians whose documents (electronic and/or physical) were searched; and the shared files (electronic or hardcopy) and/or shared computer drives that were searched."  "To the extent email or other electronic searches were conducted, the declaration does not indicate if search terms were provided to [the section], what search terms were used, whether the search terms provided for potential misspellings, and the date range of the search."
   
• Litigation Considerations, Vaughn Index/Declaration:  The court holds that "DOJ shall submit an amended Vaughn index that addresses the discrepancies identified by the Court."  Generally, "DOJ's Vaughn index contains the identifying information, identifies the exemption(s) claimed, and provides an explanation for the exemption(s) claimed."  "However, the Court notes some discrepancies in the DOJ's Vaughn index."  "Based upon the DOJ's differing representations, it is unclear if [certain] records were withheld in full or released in part."  The court also notes page count issues and several instances where records are not identified adequately.
   
• Exemption 6 & 7(C):  "The Court directs the DOJ to reprocess [plaintiff's] FOIA request in light of the privacy waivers executed by [several individuals]."  "Contrary to the DOJ's arguments, [plaintiff], and any individual or entity seeking documents from the DOJ pursuant to FOIA, may provide privacy waivers executed by individuals whose names and information may be included in the requested records."  "Although thirteen executed privacy waivers have been provided to the DOJ, the record before the Court does not demonstrate the DOJ has reprocessed [plaintiff's] FOIA request."