Plaintiff's request for records concerning the government's decision not to prosecute his business associate and former co-defendant
Granting defendant's motion to dismiss and denying plaintiff's motion to compel production of documents
- Adequacy of the search: The court concludes that defendant conducted an adequate search for responsive records. EOUSA's "declaration suffices to demonstrate that the primary document Plaintiff seeks was uncovered in Defendant's search and described in the Vaughn index, even though Plaintiff expected the document to bear a different date." Noting that "[p]lainiff has not set forth facts that show the search was insufficient or failed to produce specific documents, other than those adequately answered by Defendant's affidavits, which are entitled to a presumption of good faith," the court grants summary judgment in favor of Defendant on the adequacy of Defendant's search for responsive records.
- Waiver: The court rejects plaintiff's argument that Defendant waived the right to claim Exemption 5 because it did not invoke it in its first motion for summary judgment. The court opines that "[i]n FOIA cases, a district court may consider new claims of exemption raised for the first time after remand." The court noted that when it rejected defendant's initial categorical denial based on Exemptions 6 and 7C, it instructed defendant that it "would need to assert a different basis for withholding the documents or produce a particularized accounting of withheld material." "Defendant did just that; Defendant created a Vaughn index which, for the first time, evinced a document-by-document analysis, and Defendant was well within its right to assert any and all exemptions it believed covered each document."
- Exemption 5 & Segregability: The court determines that defendant has "met it segregability obligation for the documents withheld under Exemption 5." Noting that plaintiff did not contest that the documents were covered under the attorney work product privilege, the court agrees with defendant that because the materials are covered by the attorney work product privilege "no segregable material exists." Accordingly, the court declines to require the documents to be produced for in camera inspection and a segregability determination.
The court also concludes that "[e]ven if these documents did not qualify as work product, most of them would quality for Exemption 5 under the deliberative process privilege." The court finds that "the Vaughn index clearly demonstrates that the withheld documents were created prior to the final decision not to prosecute [plaintiff's business associate] and that they contain or reveal opinions or recommendations about whether to prosecute [plaintiff's business associate." "The index describes documents created by or sent to attorneys who were integral to the ultimate decision or recommendation that the government cancel the indictment of [plaintiff's business associate]."
- Exemption 7(C):The court holds that defendant properly withheld information about plaintiff's business associate and other third parties including federal agents, government employees, and law enforcement personnel involved in the investigation and prosecution of the case. Plaintiff argued that his former business associate had no privacy interest in the relevant records because so much information about him was already public. However, the court disagreed, stating that plaintiff's business associate "retains a strong privacy interest in non-public facts and commentary about his alleged criminal conduct contained in the withheld documents, as he never had to face a criminal prosecution in open court and such details have not been revealed."
The court remarks that "[t]o the extent Plaintiff justifies disclosure by suggesting government officials acted improperly, the public interest here is insubstantial, because Plaintiff has not put forward any compelling evidence that the Department of Justice was engaged in illegal activity when it decided not to prosecute [plaintiff's business associate.]" The court also found that there was "an insubstantial public interest in the disclosure of the details of [plaintiff's business associate's] proffer and settlement agreement because disclosure would reveal very little about the operations of the U.S. Attorney's Office." Finally, two other documents concerning transactions between plaintiff's business associate and third parties "contain no information regarding the operations of Defendant, and thus no public interest would be served by the release of the withheld documents or third party identities." Balancing the privacy interests against the public interest, the court "concludes that the primary purpose of this FOIA request is to serve private litigation interests, not the core transparency function of FOIA itself," and defendant is entitled to summary judgment with respect to Exemption 7(C).