Wisdom v. USTP, No. 15-1821, 2017 WL 149952 (D.D.C. Jan. 13, 2017) (Boasberg, J.)

Wisdom v. USTP, No. 15-1821, 2017 WL 149952 (D.D.C. Jan. 13, 2017) (Boasberg, J.)

Re: Request for records concerning plaintiff's bankruptcy proceeding, as well as records concerning trustee

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

• Litigation Considerations, Exhaustion of Administrative Remedies: The court holds that "the agency has failed to show it has a viable exhaustion defense to any of [plaintiff's] claims." The court relates that "[d]efendant does not argue that he has not exhausted his claims with regard to his [original] request; it only believes that [a second "'bifurcated'"] request should be treated separately." The court finds that "[t]he agency's unilateral and tardy reclassification, taken over Plaintiff's active protests, cannot strip [plaintiff] of his right to judicial review of an already-pending claim." The court explains that "the agency easily could have sought [plaintiff's] agreement to treat the second part of his bifurcated case as an entirely new request when it proposed its two-stage search method." "It did not do so." Additionally, "[d]efendant assured [plaintiff] that this change would not alter his rights." "In fact, it promised him that the classification would be used solely for its own administrative purposes and the request would still be prioritized as though it had been received [with the original request]." The court finds that, "[g]iven that this case was already pending by this time, an accomplished tea-leaves reader would have been hard-pressed to divine that Defendant intended to retroactively shield from imminent judicial review this final, outstanding portion of its tardy [original] determination."
   
• Litigation Considerations, Vaughn Index/Declaration: The court holds that "[w]hile [defendant's] Declarations might have provided this necessary information in a more direct and clear manner – e.g., by using the tried-and-true recitation of a 'familiarity with the documents in question' – the language he has used nonetheless presents a sufficient approximation to satisfy Rule 56's requirements here." The court explains that "[p]laintiff misconstrues what Rule 56 mandates in the FOIA context." "A FOIA declarant may satisfy that rule's personal-knowledge requirement '"if in his declaration, [he] attest[s] to his personal knowledge of the procedures used in handling [ FOIA] request and his familiarity with the documents in question."'"
   
• Litigation Considerations, Adequacy of Search: "[T]he Court concludes that, for the first two FOIA requests at issue in this case, a genuine issue of material fact exists as to whether the agency's search for responsive documents was adequate." "While the government's Motion as to the search fails because it has not properly described its searches, Plaintiff's summary-judgment Motion as to the search likewise falls short, as it remains unclear whether the searches themselves were inadequate or just inadequately explained by the government." First, "[i]n the absence of an affidavit containing the specific declaration that the agency searched all locations likely to contain responsive documents, the Court must conclude that a genuine issue of material fact remains as to whether the agency conducted an adequate search in regard to . . . [the first] request." The court explains that "[t]he agency never proceeds to declare that the AUST or other employees ultimately searched every hard copy and electronic system that might contain responsive documents." The court explains that "[defendant's] attestation, as a result, simply does not pass muster." "For largely the same reason, the agency also has not demonstrated that it adequately searched for documents related to [plaintiff's] second FOIA request." The court finds that "the agency must attest that it searched all of the places likely to contain documents pertaining to [plaintiff's] request[,]" and the court additionally finds that "the agency is also deficient in not describing the scope and method of its search in any sort of 'reasonable detail.'" "Indeed, no mention at all is made of what these employees searched nor how they did so." Addressing a third search, the court finds that "[t]he agency . . . describes no search at all that took place of records in [one] office[]" after defendant "'determined that any responsive documents held [in that office] would be duplicative of the documents provided[.]'" "While there may be some cases where no search is necessary because any such effort would clearly be duplicative, the agency never explains in sufficient detail why that would be so in this instance." "Suffice it to say, then, that no search of this office at all was plainly not an adequate search here."
   
• Exemption 5, Deliberative Process Privilege: "The Court . . . holds that Defendant has not demonstrated at this stage that it can withhold any of the documents for which it cited Exemption 5's deliberative-process privilege." First, "the Court cannot say that these redactions were proper." The court relates that, "[a]s to the first category – which contained information about how [the trustee] should be evaluated as a trustee – the agency explains only that it determined these documents would 'dampen the ability of the [agency]'s employees to have open and frank discussions internally and with the trustee regarding trustee performance.'" The court finds that "[t]he agency does not explain how these documents were 'predecisional' or, in fact, whether they were deliberative in the sense of being designed to work toward the crafting of an agency policy or action." "Nor does Defendant cite to whom or from whom these documents were sent." As to the second category of information withheld as deliberative, "discussions about how the Trustee should handle complaints being made by the public about [the trustee's] demeanor[,]" the court finds similarly that it "again simply lacks a sufficient description of these documents."
   
• Exemption 5, Attorney Work-Product Privilege: "The Court . . . must conclude that a genuine issue of material fact remains as to whether the government properly withheld any records under Exemption 5’s attorney-work-product privilege." The court relates that "[d]efendant here redacted documents that it claims were 'prepared by an attorney or at the direction of an attorney in connection with a possible administrative action against the Trustee[.]'" "Full stop." "The agency says nothing more about who prepared the documents or what content they contain." "Nor does it clarify against whom it thought such litigation might occur or on what basis[.]" The court finds that "[t]he agency thus has failed to meet its burden to justify any of these redactions through an adequately descriptive affidavit."
   
• Exemption 6: "[T]he Court holds that the government is entitled to partial summary judgment as to its Exemption 6 redactions[.]" "[T]he Court will grant Defendant partial summary judgment as to the withholding of . . . names and personal data" of third party individuals. The court first finds that "courts have routinely held that government files consisting of private pieces of information similar to what might be contained in a personnel file sufficiently fit the 'similar files' bill, including the type of names and bank-account numbers that the government withheld here." The court then finds that "[r]egardless of what information these individuals may have been forced to make public in their bankruptcy proceedings, they maintain a continued privacy interest in staying unconnected to these particular records." Third, the court finds that "the government convincingly argues that the release of these records' substance fully satisfies the public interest in them, and no other gain could be had by the further disclosure of these individual names or related personal data." "As it notes, the exposure of this identifying information could subject the individuals involved to 'unnecessary public attention, harassment, or embarrassment' and stymie the government's efforts to obtain candid information about the performance of its trustees from such parties in the future." The court also finds that plaintiff "postulates vaguely that identification of these individuals might contribute to the public's understanding of the operations or activities of the government, but never explains why the identification of the particular private citizens involved in these events would do so."
  
  However, "the Court will review [documents "evaluating [the trustee's] work"] in camera to resolve the competing interests." The court finds that these records are "still of the type protected in 'similar files'" and "a person has a substantial privacy interest in a supervisor's candid evaluation of his performance." However, the court finds that "[plaintiff] makes a substantial argument that [the trustee's] performance evaluations could at least marginally advance the public interest in shedding light on some form of misconduct by a trustee and the government's response thereto." The court specifically notes that "[plaintiff] is also surely correct that [the trustee], as a trustee, wielded an enormous amount of official power over certain citizens, and, should that authority have been abused, the public has a clear interest in knowing how the government responded – to investigate and, if substantiated, to squelch such behavior." "On the other side of the ledger, there is no evidence at this point, despite [plaintiff's] claims to the contrary, of widespread abuses by any other private trustees or, indeed, serious abuses of his authority by [the trustee] in particular." Therefore, the court finds that "there remains a genuine issue of material fact as to whether Exemption 6 justifies their non-disclosure." "The same cannot be said about the performance evaluations of other trustees, which USTP also withheld on the same ground as [the trustee's] reviews." "These documents, for the reasons already listed, plainly meet the first and second prongs of the Exemption 6 analysis." "Absent any evidence of widespread wrongdoing by these trustees, though, [plaintiff] has failed to identify any potential public interest in their disclosure." "The Court thus concludes that USTP has sufficiently met its burden with regard to withholding these documents."
  
  As to that information appropriately withheld, "the Court finds that the agency has indeed met its segregability obligations under FOIA." The court relates that "the agency has shown that it went line-by-line to determine whether any of the information contained therein was subject to the cited exemption."
   

• Exemption 7(E): "The Court . . . finds that the government has failed to meet its burden for summary judgment as to Exemption 7(E)." First, the court finds that the two "redactions [at issue]. . . implicate the agency's procedures for identifying fraud and, if revealed, would help debtors avoid the sort of conduct that the agency looks for in flagging potential criminal acts." "Given the 'relatively low bar' required to make this showing, moreover, the Court concludes that the agency has '"demonstrate[d] logically how the release of the requested information might create a risk of circumvention of the law."'" However, the court finds that "USTP makes no showing at all" as to how "the records or information withheld [are] compiled for law-enforcement purposes."