Thompson v. DOJ, Criminal Div., No. 14-1786, 2015 WL 7303519 (D.D.C. Nov. 19, 2015) (Boasberg, J.)

Thompson v. DOJ, Criminal Div., No. 14-1786, 2015 WL 7303519 (D.D.C. Nov. 19, 2015) (Boasberg, J.)

Re: Request for records concerning alleged court-authorized wiretap surveillance

Disposition: Granting defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "The Court . . . concludes that the search here was adequate."  The court finds that "[defendant] specifically states that 'the Criminal Division searched the two records systems that would contain information responsive to Plaintiff’s request. Its search was conducted in good faith, and was reasonable and complete.'"  The court finds that "[s]uch a statement satisfies the agency’s justificatory obligations."  Additionally, the court finds that "because Plaintiff offers no evidence indicating that another record system or search term might have yielded additional responsive materials, he has proffered no basis on which to challenge the reasonableness or thoroughness of this search."
   
• Exemption 5, Attorney Work-Product:  "The Court . . . concludes that the attorney-work-product prong of Exemption 5 properly covers the seven categories of responsive materials identified by the Criminal Division in processing Plaintiff’s FOIA request."  The court holds that "[t]he agency’s detailed explanations in both its declaration and Vaughn Index of the reasons why these documents were withheld clearly suffice."  The court explains that "[f]irst, the entries in the Vaughn Index describe the nature and contents of the withheld documents."  "Second, the Index identifies the documents’ origins."  "Third, it notes the investigative circumstances around their creation."  "Finally, it indicates the foreseeable criminal prosecution for which the documents were created."  The court finds that "[t]hese types of documents, in short, are classic attorney work product, the disclosure of which would risk putting DOJ lawyers’ thought processes and strategy on public display."  Additionally, the court finds that certain "categories of documents [withheld] . . ., while undeniably part of an attorney’s work product, possess a partially administrative character."  "These documents include system logging notes indicating that OEO has received a request from a prosecutor for permission to apply for a Title III order and emails from ESU attorneys to AUSAs acknowledging receipt of Title III applications."  "Because these quasi-administrative records were compiled in anticipation of a specific criminal prosecution and are not generic agency records maintained for some conceivable future litigation, this Court joins several other courts in this District that have held that the work-product privilege protects them."  Also, responding to plaintiff's misconduct argument, the court finds that, "[e]ven assuming the exception did apply to the work-product privilege, it is construed very narrowly and only in cases of extreme government wrongdoing."  The court finds that "the government-misconduct exemption is clearly inapplicable" to these circumstances.  Finally, responding to plaintiff's segregation argument, the court finds that "'[i]f a document is fully protected as a work product, then segregability is not required.'"
   
• Litigation Considerations, Vaughn Index/Declaration:  "The Court finds that Defendants’ Vaughn Index is sufficiently specific to identify the responsive documents uncovered in their search and justify withholding them from disclosure."  "Although the Index does not list [several details that plaintiff asks be listed] . . . the Court must be mindful that the agency 'has the difficult obligation to justify its actions without compromising its original withholdings by disclosing too much information,' and that '[t]he Vaughn Index provides a way for the defending agency to do just that.'"  "The Court, here, is persuaded that the Criminal Division has struck the right balance between these competing concerns in its Vaughn Index."