Spears v. DOJ, No. 14-387, 2015 WL 5730734 (D.D.C. Sept. 29, 2015) (Collyer, J.)

Spears v. DOJ, No. 14-387, 2015 WL 5730734 (D.D.C. Sept. 29, 2015) (Collyer, J.)

Re: Request for records concerning wiretapping of plaintiff's telephone

Disposition: Granting defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "The Court finds the Criminal Division’s search for responsive records reasonably executed and conducted in good faith."  The court finds that "[t]he declarant has described two sources of records in the Criminal Division where responsive records were likely to be found, and where indeed they were found."  The court relates that "[t]he Criminal Division searched by the four telephone numbers listed in the FOIA request and by [plaintiff's] name."  Additionally, "[t]he declarant avers that 'the Title III request tracking system is the Criminal Division’s only official information management system for Title III applications submitted to OEO by federal prosecutors across the U.S.'"  The court also notes that defendant searched the e-mails of the two individuals who "were involved in the [wiretap] application process."
   
• Exemption 3:  The court holds that "summary judgment is granted to DOJ on its exemption 3 claim."  The court relates that "[t]he Criminal Division withheld certain documents in compliance with Title III of the Organized Crime Control Act of 1968, codified at 18 U.S.C. §§ 2510–21."  "It is established that 'Title III falls squarely within the scope of [the second prong of 5 U.S.C. § 5(b)(3)], as a statute referring to 'particular types of matters to be withheld.'''  The court relates that "[t]he Criminal Division withheld 'the applications, affidavits, orders and authorization memorandums' because those documents remain under seal; thus, 18 U.S.C. § 2518(8)(b) prohibits their disclosure."  Additionally, the court finds that "[plaintiff] has not produced any evidence showing that the documents have been unsealed or are in the public domain."

• Exemption 5, Attorney Work-Product:  The court holds that "[t]he Criminal Division has established the foregoing documents as attorney work product, and '[i]f a document is fully protected as work product, then segregability is not required.'"  The court finds that "[t]he declarant avers that the documents 'were created as part of the wiretap application process, and were therefore created in anticipation of litigation, i.e., a criminal prosecution[.]'"
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "[t]he Criminal Division has properly justified its withholding [of] the described material under the deliberative process privilege."  The court relates that "the Criminal Division withheld as deliberative process material the agents’ affidavits in support of the Title III applications, the action memorandums from the ESU attorney to the Assistant Attorney General, and the email messages between the prosecutor and the ESU attorney, 'in which the attorneys discuss the ESU review process, edits, revisions, etc.'"  The court finds that "[e]ach of those types of documents was pre-decisional, involved the “give-and-take” of the decision-making process, and was submitted 'by a decision-maker’s subordinate ... pursuant to a process that is required by Title III and internal Criminal Division policy.'"
   
• Exemptions 6 & 7(C):  The court holds that "summary judgment is granted to DOJ on exemptions 6 and 7(C)."  "The Criminal Division withheld the same documents under exemptions 6 and 7(C) that were properly withheld under exemptions 3 and 5."  "Therefore, the Court will not dwell on these bases for withholding the documents, but it finds both exemptions properly invoked to protect the personal privacy interest of 'the law enforcement personnel and private persons [who were] involved in the wiretapping and the Criminal Division’s internal review process.'"  Additionally, the court finds that "[plaintiff's] asserted personal interest in the documents to challenge his conviction 'does not overcome the privacy interests' of those individuals."
   
• Litigation Considerations, "Reasonably Segregable" Obligation:  "Given the type of documents that were withheld, and the fact that most contained non-segregable attorney work product, the Court finds that no segregable information has been withheld."  "The declarant 'reviewed each page of [responsive] material ... to determine whether there was any non-exempt information that could be reasonably segregated and released,' and concluded that there was none."