Wright v. DOJ, No. 14-272, 2015 WL 4910502 (D.D.C. Aug. 17, 2015) (Walton, J.)

Wright v. DOJ, No. 14-272, 2015 WL 4910502 (D.D.C. Aug. 17, 2015) (Walton, J.)

Re: Request for records concerning electronic surveillance and interception of plaintiff's private telephone conversations

Disposition: Granting defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[T]he Court finds that the defendants' declaration sets forth sufficient factual detail of the methods utilized in conducting searches for responsive documents to conclude that the defendants 'conducted ... search[es] reasonably calculated to uncover all relevant documents.'"  The court finds that "[i]n response to the plaintiff's FOIA request, the defendants searched two sources of records where relevant documents were likely to exist."  In response to plaintiff's objection, the court finds that "'there is no requirement that an agency search every record system in response to a FOIA request, ... only those [systems of] records that are likely to have responsive documents.'"
   
• Exemption 3:  "[T]he Court concludes that the defendants properly withheld the subject records pursuant to Exemption (b)(3)."  The court relates that "defendants invoked Exemption (b)(3) in conjunction with Title III, 18 U.S.C. §§ 2510–2521," which provides that "'[a]pplications made and orders granted under this chapter shall be sealed by the judge.... Such applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction.'"  The court finds that defendant "has 'no discretion, in [the] plaintiff's case or in any other, to disclose Title III information' once a Title III application and order is sealed by a judge," as it was here.
   
• Litigation Considerations, Vaughn Index/Declaration:  "[T]the Court concludes that the defendants have fulfilled their burden to 'describe the documents [withheld under Exemption 3] and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record [or] by evidence of agency bad faith.'"  "Even though the defendants do not offer detailed descriptions of the documents withheld pursuant to Exemption (b)(3), they have nonetheless fulfilled their burden under the FOIA."  "'Exemption 3 differs from other FOIA exemptions in that its applicability depends less on the detailed factual contents of specific documents; the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within that statute's coverage.'"
   
• Waiver:  "The Court disagrees for several reasons that the subject documents [withheld under Exemption 3] have entered the public domain."  "First, the court transcripts do not establish that the Title III applications and authorization memoranda have been released to the public."  "Second, the materials provided to the plaintiff and his legal counsel through discovery are not in the public domain."
   
• Exemption 5, Attorney Work-Product Privilege:  "[T]he Court concludes that the defendants properly asserted Exemption (b)(5) to withhold the subject documents, as they are protected from disclosure under the attorney work-product privilege."  The court relates that "[t]he defendants represent that each of these documents was 'prepared by an attorney who was acting at the behest of a client (the U.S. Government) or someone acting at the direction of such an attorney' in anticipation of litigation."  "The defendants state that withheld documents were 'used to establish the existence of probable cause, that less intrusive investigative methods have been exhausted or would be futile, and other important statutory requirements that must be met to ensure that the resulting intercepts may be admissible.'"

The court also rejects plaintiff’s argument that the work-product privilege should be vitiated, finding that "plaintiff has failed to produce" evidence of any government misconduct, instead "offering only conclusory allegations."

• Litigation Considerations, "Reasonably Segregable" Requirements:  "[T]he Court concludes that the defendants have satisfied their segregability obligations under the FOIA."  "Here, the defendants provided a Vaughn index describing the withheld documents and an affidavit asserting that the documents 'have [been] reviewed ... [and] there was [no] non-exempt information that could be reasonably segregated and released.'"  "And the plaintiff has not provided any reason to question the good-faith presumption afforded to these representations."