Wisdom v. USTP, No. 15-1821, 2017 WL 3842117 (D.D.C. Sept. 1, 2017) (Boasberg, J.)

Wisdom v. USTP, No. 15-1821, 2017 WL 3842117 (D.D.C. Sept. 1, 2017) (Boasberg, J.)

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

Disposition:  Granting defendant's renewed motion for summary judgment

• Litigation Considerations:  "The Court . . . rejects Plaintiff's procedural challenge to Defendant's Motion."  The court finds that "[w]hile successive motions may be inappropriate in certain contexts, the nature of FOIA cases lends itself to such filings."  The court explains that "a court's decision that the agency fell short of the mark in a mendable way often includes a directive that it go back and attempt to correct any errors – e.g., by conducting another search or by releasing more documents."
   
• Litigation Considerations, Vaughn Index/Declaration:  The court rejects another of plaintiff's arguments and finds that "FOIA affidavits can be based on hearsay, and there is no requirement that the declarant must have been personally involved in each of the challenged searches."  The court finds that "[defendant's] declaration meets [the] criteria."  "His sworn statements were 'based upon [his] personal knowledge, upon information provided to [him] in [his] official capacity, upon [his] familiarity with the documents in question, and upon conclusions and determinations reached and made in accordance therewith.'"
   
• Litigation Considerations, Adequacy of Search:  "The Court . . . finds that the search was adequate and grants Defendant summary judgment on this issue."  The court finds that "[defendant] recounts in considerable detail the search locations, methods, and terms the Agency used to locate responsive records."  Also, responding to plaintiff's results-focused argument, the court finds that "[a]gencies . . . are judged not on the specific documents that they produce but on whether the search was 'reasonably calculated to uncover all relevant documents.'"
   
• Exemption 5, Deliberative Process Privilege:  "[T]he Court finds that its redacted material is 'both predecisional and deliberative.'"  The court finds that "[t]he documents, which contain 'discussions, deliberations, opinions and recommendations regarding the biennial USTP Trustee Performance Review' . . . are both predecisional and deliberative."  "Discussions regarding a trustee's performance and whether to terminate or suspend his service by definition occur before the Agency makes an employment decision and 'compris[e] part of a process by which governmental decisions and policies are formulated.'"  In response to plaintiff's misconduct arguments, "[t]he Court . . . finds that [plaintiff] has not presented any evidence of government misconduct to overcome the deliberative-process privilege."
   
• Exemption 5, Attorney Work-Product:  "Because the 'need to protect attorney work product is at its greatest when the litigation with regard to which the work product was prepared is still in progress,' . . . the Court has little difficulty finding that the discussions between the AUST and the Acting AUST about Plaintiff's ongoing related litigation are exempt from disclosure."
   
• Exemption 6:  "The Court finds . . . that [a trustee's] privacy interest in his performance evaluations clearly outweighs any public interest in the EOUST evaluation process."  The court finds that, "[a]fter reviewing the documents in camera . . . the Court concludes that the scale tips in favor of nondisclosure."  "Private trustees . . . occupy a position somewhere between public officials and private citizens."  "As a private individual, [the trustee] certainly has a strong privacy interest in the details of his evaluations."  The court also finds that "[e]ven if [the trustee] were a government employee (which he is not) he would still have some privacy interest in his performance evaluations."  Finally, the court finds that "[a]ny further information disclosing the particulars of [the trustee's] evaluations would not illuminate the subject enough to overcome [the trustee's] privacy interest."