Widi v. McNeil, No. 12-00188, 2016 WL 4394724 (D. Me. Aug. 16, 2016) (Woodcock, Jr., J.)

Widi v. McNeil, No. 12-00188, 2016 WL 4394724 (D. Me. Aug. 16, 2016) (Woodcock, Jr., J.)

Re: Request for records concerning plaintiff

Disposition: Granting in part and denying in part defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search: Regarding ATF's search, "[g]iven the ample description of the process and the decision to run what turned out to be a redundant search, the Court concludes there is no genuine dispute of material fact as to whether the search was adequate by a standard of reasonableness." The court relates that "[a]fter [plaintiff's] objection [that "ATF 'used information obtained from the EOUSA to conduct its search rather than conducting its own search'"] . . . [ATF] describes [its] process of circling back, conducting its own N-Force search." "[T]he Court refuses to see in the agency's error correction evidence of bad faith."
   
• Exemption 3: "[T]he Court concludes that there is a genuine dispute of material fact as to whether the grand jury exhibits referred to in [one document withheld by EOUSA] are exempt." The court finds that "[s]everal of the documents are 'directly associated with the grand jury process' because the government created them in preparing its case for the grand jury." Additionally, the court finds that "[o]ther documents were created after the grand jury issued a superseding indictment[,]" but "[t]hese documents nonetheless involve grand jury material." "Though temporally different in that they were created after, rather than before, the grand jury proceedings, the Court concludes that they may be fairly analogized to the first category because their exemption preserves grand jury secrecy." However, the court finds "that exhibits, by virtue of their status as exhibits, are not ipso facto entitled to protection" and "'the government needs to provide some basis for a claim that releasing them will implicate the secrecy concerns protected by Rule 6(e).'"
   
• Exemption 5, Deliberative Process Privilege & Attorney Work-Product Privilege: "The Court is satisfied that [certain documents] are predecisional and deliberative, and therefore entitled to Exemption 5." Also, "the Court reviews and is satisfied that [two other documents] were prepared under the direction of an attorney in contemplation of litigation, and therefore entitled to Exemption 5." However, regarding other documents, "the Court can identify the litigation for which the document was created, but EOUSA has not 'explained[ed] why the work product privilege applies to all portions of the document.'"
   
• Exemption 6 & 7(C): "After reviewing the documents redacted and – in the rare instance – withheld in full, the Court is satisfied that Exemption 7(C) protects ATF's documents." "In some detail, ATF spells out that the information withheld concerns the identities of law enforcement officials and relevant third parties, and as such, the information implicates the privacy concerns that Exemption 7(C) exists to protect." "Further, . . . [plaintiff] 'has failed to connect his deeply personal stake in this information to a larger governmental function' in a way that the Court finds persuasive." However, regarding EOUSA's withholdings, the court finds that "only one of the documents . . . gives the Court any assurance that EOUSA properly considered segregability." "The other documents, however, provide no such assurances." "Thus, as to EOUSA's wholesale withholding of certain documents . . . there is a genuine dispute of material fact on Exemption 7(C) and, by extension, Exemption 6."
   
• Exemption 7(D): The court holds that "[t]here is a genuine dispute of material fact as to whether Exemption 7(D) applies to [one document] and [certain] grand jury exhibits[.]" First, regarding "a psychiatric consultation note," "[a]ssuming the note is about [plaintiff] and written after a consultation with him, the Court cannot understand how EOUSA can assert inferred confidentiality on [plaintiff's] behalf given that [plaintiff] is now the party requesting the document." Second, "[t]he Court is without grounds on which to decide that the Government elicited the information underlying all eighty-five pages of grand jury exhibits on an inference of confidentiality." The court notes that "EOUSA does not make this assertion; instead, it cites Exemption 7(D) only 'to the extent that' it might apply."
   
• Exemption 7(E): "Given the low bar, the Court easily concludes that [ATF] has met its burden." The court relates that ATF withheld "'the case report checklist related to the prosecution recommendation,'" disclosure of which "would provide individuals with the opportunity to know in advance what is needed to investigate and prosecute a criminal case under ATF’s jurisdiction," and "'TECS codes' that are 'file numbers used to store and retrieve law enforcement information,'" disclosure of which "could allow individuals outside the agency to circumvent agency functions and gain access to sensitive investigative information."
   
• Exemption 7(F): The court holds that "there is no genuine dispute of material fact as to ATF's withholdings and redactions under Exemption 7(F)." The court notes that "ATF . . . assert[s] that [plaintiff] 'threaten[ed] a witness in open court.'" However, the court finds that "[t]here remains a genuine dispute of material fact as to" "the psychiatric consultation [withheld] 'due to potential for harm to [plaintiff] should document be disclosed to general prison population.'" "The Court does not understand how release of this document to [plaintiff] could endanger [plaintiff's] safety."
   
• Procedural Requirements, Referrals and Consultations: "The Court does not consider the agencies' handling of [plaintiff's] FOIA request . . . to be an exemplar of administrative efficiency, but it is unable to conclude that [a delay] was a consequence of referral." "It therefore finds the referrals permissible under the law."