Williams v. DOJ, No. 17-699, 2019 WL 6700299 (D. Utah Dec. 9, 2019) (Stewart, J.)

Williams v. DOJ, No. 17-699, 2019 WL 6700299 (D. Utah Dec. 9, 2019) (Stewart, J.)

Re:  Request for certain records concerning plaintiff

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

• Exemption 5, Deliberative Process Privilege:  The court finds that "most of the documents were improperly withheld under Exemption 5 but should be partially withheld under Exemption 6."  The court relates that "[t]he parties do not dispute that the withheld documents were created for [Office of Professional Responsibility ("OPR")] personnel and are predecisional."  "First, [the court finds that] some of the documents were properly withheld because they are deliberative and non-segregable."  The court points to "email correspondence between two OPR employees discussing strategy and seeking advice on how best to interview a witness," "handwritten notes recording the author's impressions and opinions of certain events in the [plaintiff's] investigation," "handwritten notes by an attorney assessing the [plaintiff's] investigation and strategizing future investigatory means," and "internal memorandum containing the author's recommendations for the investigation's future."  "Second, [the court finds that] some documents were improperly withheld in full because they contain segregable information."  These include "a chronological summary of [plaintiff's] complaint that contains factual statements and the author's conclusions and impressions of certain events," "a factual summary of a witness interview that – subject to Exemption 6 – should be disclosed," and "an interviewer's notes that primarily contain factual statements taken from a witness."
   
• Exemption 6:  Regarding OPR, the Court concludes that the names of low-level governmental employees, witnesses, and other individuals whose identities would shed little light on the operation of government should be withheld, and all other segregable information should be produced."  The court relates that "Defendant relies on Exemption 6 to withhold the bulk of the . . . withheld pages and argues that Exemption 6 protects both the identity of individuals mentioned during [plaintiff's] investigation and all documentation related thereto."  "This use of Exemption 6 is legally incorrect, overbroad, and swallows FOIA's general rule favoring disclosure."  "Defendant is correct that the OPR documents contain the names of unnoteworthy individual witnesses, low-level governmental employees, and other obscure individuals who have a strong privacy interests in not having their identity revealed."  "Defendant, however, incorrectly assumes that because these individuals have a privacy interest, all outlines, notes, and transcripts related to those individuals are also protected."  "Interestingly, Defendant makes no argument about why all documentation related to these individuals should also be withheld, or why redacting the protected individuals' names is insufficient to protect the individuals' privacy interest."
  
  Regarding the FBI, the court holds that "["pages were retrieved from an FBI criminal investigative file pertaining to third parties who were subjects of an FBI investigation, though ultimately not prosecuted"] were . . . properly withheld under Exemption 6."  The court finds that "these records were compiled for law enforcement purposes" because "the Tenth Circuit has adopted a per se rule that 'all records and information compiled by an agency . . . whose primary function is law enforcement, are "compiled for law enforcement purposes" for purposes of Exemption 7.'"  The court also relates that "[t]he Tenth Circuit has stated that '[i]dentities of third parties interviewed and third parties whose names surface in a criminal investigation have been recognized as excludible under Exemption 7(C) in order to prevent embarrassment and harassment and to enable the FBI to gather the information it needs.'"  "Based upon this, the Court finds that individuals named in the withheld documents have a personal privacy interest at stake."  Finally, the court finds that "there is nothing contained in the 16 pages withheld by the FBI that would shed any light on such conduct."  "Rather, as discussed, these documents relate to investigations for securities and commodities fraud."  "Therefore, [the court finds these documents] were properly withheld."