Bagwell v. U.S. Dep't of Justice, Case No. 15-cv-531 (CRC)

588 F.Supp.3d 58

Ryan BAGWELL, Plaintiff,

v.U.S. DEPARTMENT OF JUSTICE, Defendant.

Case No. 15-cv-531 (CRC)

United States District Court, District of Columbia.

Signed March 1, 2022

Ryan Bagwell, Melrose, MA, Pro Se.

Bradley Silverman, Brenda A. Gonzalez-Horowitz, DOJ-USAO, Washington, DC, for Defendant.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge This long-running Freedom of Information Act ("FOIA") case centers on the efforts of Ryan Bagwell, a Pennsylvania State University alumnus, to obtain records from the Executive Office for United States Attorneys ("EOUSA") related to investigations into possible child sexual abuse on Penn State's campus. After two previous rounds of briefing, the parties have filed renewed cross-motions for summary judgment to settle disputes over two remaining sets of EOUSA's production. The first—referred to as the "inadvertently overlooked" records—consists of 11,648 pages of emails that EOUSA belatedly discovered while briefing the last summary judgment motion. EOUSA has withheld these records in full. The second—referred to as the "remand records"—includes the results of a search of the U.S. Attorney's Office for the Middle District of Pennsylvania email system, ordered by this Court in 2018, as well as records EOUSA had referred to the Department of Education and FBI for review. EOUSA withheld a portion of these records. In their cross motions, the parties ask the Court to decide whether various exemptions to FOIA's disclosure requirement justify EOUSA's withholding decisions.

As explained below, the Court will grant in part and deny in part the government's motion and deny Bagwell's cross-motion for partial summary judgment. As to the inadvertently overlooked records, the Court concludes that none of the cited FOIA exemptions justify EOUSA's blanket withholding of more than ten thousand pages of documents. In particular, the Court is not convinced these records are entirely exempt from production solely because they were turned over to federal prosecutors in response to a grand jury subpoena. As to the remand records, however, the Court is satisfied that the relevant FOIA exemptions support the withholding decisions.

I. Background

Assuming familiarity with its two previous summary judgment opinions, see Bagwell v. Dep't of Just., No. 15-cv-531, 2015 WL 9272836 (D.D.C. Dec. 18, 2015) (" Bagwell I"); Bagwell v. Dep't of Just., 311 F. Supp. 3d 223 (D.D.C. 2018) (" Bagwell II"), the Court only briefly outlines the background needed to understand the parties’ renewed summary judgment requests.

In April 2014, Plaintiff Ryan Bagwell filed a FOIA request with EOUSA for "any and all records of investigations between November 1, 2011 and [April 30, 2014] that pertain to allegations of child sexual abuse that occurred on the campus of The Pennsylvania State University." Compl. ¶ 5. In particular, Bagwell sought information about criminal investigations by the local U.S. Attorney's Office and the Pennsylvania Attorney General's Office into allegations of child sexual abuse by former Penn State assistant football coach Jerry Sandusky. See Bagwell II, 311 F. Supp. 3d at 227. He also sought records relating to an internal investigation organized by Penn State's Board of Trustees, led by the law firm of former FBI Director Louis Freeh. Id. When EOUSA failed to timely respond to his request, Bagwell, proceeding pro se , filed suit against its parent agency, the Department of Justice ("DOJ"). Id.

After the filing of this case, EOUSA made an initial production, releasing 517 pages and withholding 104 more. Id. The parties cross-moved for summary judgment. Id. But the Court found summary judgment premature, given concerns about both the sufficiency of the search and the adequacy of the Department's justifications for its withholdings. See Bagwell I, 2015 WL 9272836, at *2, *4–5. Following that ruling, DOJ performed a second search of the U.S. Attorney's Office email system, produced an additional set of documents, and made further withholdings. See Bagwell II, 311 F. Supp. 3d at 227–28. The parties then prepared renewed motions for summary judgment. Id. at 228.

But in June 2017, while finalizing its renewed motion, DOJ "realized" it had "inadvertently failed to produce approximately 260,800 pages" of potentially responsive electronic records. See Mot. for Extension of Time at 2, ECF No. 46. To avoid further delay, the Court bifurcated the proceedings. It ordered the parties to propose a separate production and briefing schedule for the "inadvertently overlooked" records and move forward with summary judgment on the material already produced. See Order of July 19, 2017, at 1–2, ECF No. 50.

Following that briefing, the Court granted in part and denied in part each of the parties’ motions. See Bagwell II, 311 F. Supp. 3d at 228. As relevant here, the Court first held that the Department's renewed search of the U.S. Attorney's Office email system was still inadequate because at least one chosen search term was not "reasonably calculated to uncover all relevant documents." Id. at 230 (quoting Ancient Coin Collectors Guild v. Dep't of State, 641 F.3d 504, 514 (D.C. Cir. 2011) ). The Court next addressed a subset of records—known as the "referred records"—that DOJ had referred externally to the Department of Education and internally to the FBI for additional review. Id. at 230–31. Because the Department of Education had not yet responded, the Court instructed DOJ "to either produce or explain the withholding of those records." Id. at 231. Finally, the Court held that the Department had not adequately supported withholding certain records related to a Pennsylvania state grand jury under Exemption 7(A), but largely endorsed the withholdings DOJ had made under Exemption 5. Id. at 233–37.

The pending motions cover the two sets of documents still in dispute following the 2018 summary judgment Order. First are the "inadvertently overlooked" records. Given the number of potentially responsive records in this group, Bagwell agreed to narrow the scope of his request to a subset of emails mentioning the names of ten individuals over a fifteen-month period. Hudgins Decl. ¶ 7, ECF No. 109-3; Suppl. Hudgins Decl. ¶ 10, ECF No. 116-1. These individuals include several former Penn State trustees, as well as attorneys considered or ultimately hired by Penn State to conduct an internal investigation into the Sandusky allegations. See Mike Dawson, Penn State Hired Louis Freeh Over Former Homeland Security Chief Michael Chertoff, Centre Daily Times (Mar. 20, 2014, 1:12 AM), https://www.centredaily.com/news/local/education/penn-state/jerry-sandusky/article42846120.html. The resulting search produced 11,648 pages of records, which DOJ withheld in full pursuant to FOIA Exemptions 3, 6, 7(C), and 7(D). Hudgins Decl. ¶¶ 7–8.

Second are the "remand records." After meeting and conferring, the parties again agreed to narrow the scope of the request to cover several thousand potentially responsive emails. Id. ¶ 9. EOUSA initially released 45 pages in full and 153 in part, and withheld 256 pages. Id. ¶ 10. EOUSA later provided a response to cover records it had at various points referred to the Department of Education and FBI for review. Of those records, EOUSA released 1 page in full and 14 in part, and withheld 259 in full. Id. For its withholdings, EOUSA cited Exemptions 3, 5, 6, 7(C), and 7(D).¹ See Hudgins Decl. Ex. A at 7, 9, ECF No. 109-4.

After these latest rounds of production, the Department again renewed its motion for summary judgment. DOJ asks the Court to hold that it properly invoked Exemptions 3, 5, 6, 7(C), and 7(D), and that no information withheld in its responses could be reasonably segregated. See Def.’s Mem. in Supp. of Renewed Mot. Summ. J. ("Def.’s MSJ") at 6–18, ECF No. 109-1. In his opposition and cross-motion for partial summary judgment, Bagwell challenges the applicability of several cited FOIA exemptions, as well as the sufficiency of the Department's review for material that could be segregated and released. See Pl.’s Mem. in Opp'n to Def.’s Mot. Summ. J. and in Supp. of Pl.’s Cross-Mot. Summ. J. ("Pl.’s MSJ") at 4–17, ECF No. 114.² He also contends that his request is governed by the FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538, and that DOJ has not shown, as required by this Act, that release of some withheld material would cause reasonably foreseeable harm. See id. at 18–22; 5 U.S.C. § 552(a)(8)(A)(i)(I). Based on the parties’ evidentiary submissions, briefing, and arguments at the January 18, 2022, hearing, the Court will grant in part and deny in part the Department's motion and deny Bagwell's cross-motion.

II. Legal Standard

FOIA disputes are typically and appropriately resolved on summary judgment. See Citizens for Resp. & Ethics in Washington v. Dep't of Homeland Sec., 525 F. Supp. 3d 181, 187 (D.D.C. 2021). In FOIA cases, an "agency is entitled to summary judgment if no material facts are genuinely in dispute and the agency demonstrates ‘that its search for responsive records was adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt information.’ " Prop. of the People, Inc. v. Off. of Mgmt. & Budget, 330 F. Supp. 3d 373, 380 (D.D.C. 2018) (quoting Competitive Enter. Inst. v. EPA, 232 F. Supp. 3d 172, 181 (D.D.C. 2017) ).

Although FOIA was enacted "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny," Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), the statute also contains a set of exemptions to the obligation to provide government records to the public, see 5 U.S.C. § 552(b). But given FOIA's "strong presumption in favor of disclosure," its "statutory exemptions, which are exclusive, are to be narrowly construed." Nat'l Ass'n of Home Builders v. Norton, ...