Parker v. U.S. Dep't of Justice

214 F.Supp.3d 79

Lonnie J. PARKER, Plaintiff,

v.UNITED STATES DEPARTMENT OF JUSTICE, Office of Professional Responsibility, Defendant.

Civil Action No. 15-1070 (JEB)

United States District Court, District of Columbia.

Signed October 12, 2016

Daniel J. Stotter, Stotter & Associates LLC, Corvallis, OR, for Plaintiff.

Wyneva Johnson, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

News reports that a former Assistant United States Attorney in Arkansas had represented the United States in court despite lacking a valid license to practice law got Plaintiff Lonnie J. Parker's attention. See ECF No. 10-3 (Declaration of Lonnie J. Parker), ¶ 3. Wanting to understand how the AUSA had been hired and permitted to litigate on behalf of the United States, and whether such misconduct could be prevented moving forward, Parker submitted a Freedom of Information Act request to Defendant, the Department of Justice's Office of Professional Responsibility. After OPR initially told Plaintiff it would neither confirm nor deny the existence of responsive records, he administratively appealed and eventually filed suit here. Defendant then changed course and agreed to produce all non-exempt material. It released some records to Plaintiff and referred others to three different DOJ components for disclosure decisions. The parties have now cross-moved for summary judgment, and the Court sides with the government on all but one issue.

I. Background

In February 2014, Plaintiff submitted a FOIA request to OPR, seeking records "regarding any investigation or consideration of disciplinary actions involving the unauthorized practice of law by former Assistant U.S. Attorney Lesa Gail Bridges Jackson ...." ECF No. 23-1, Exh. D at 1. OPR, which investigates allegations of improper conduct by DOJ attorneys, see 28 C.F.R. § 0.39a, initially resisted disclosure. It issued a Glomar response, thereby refusing to confirm or deny the existence of any records responsive to Plaintiff's request. See ECF No. 7-2 (Declaration of Ginae Barnett), ¶¶ 6, 14-15 and Exh. C. After Plaintiff exhausted his administrative remedies, id. , Exh. D, he filed suit in July 2015, alleging that Defendant had violated FOIA by failing to provide all non-exempt responsive records and failing to undertake an adequate search. See ECF No. 1 (Complaint), ¶¶ 21-22.

Before answering, OPR moved for summary judgment, explaining that because it believed that DOJ had not officially acknowledged an investigation into Bridges Jackson, OPR's Glomar response was appropriate. See ECF No. 7 at 4-7. Plaintiff then filed his own summary-judgment motion and supporting materials, through which OPR learned that the Executive Office for United States Attorneys, another DOJ component, had in fact already revealed, through a document previously released to Plaintiff, that OPR had investigated Bridges Jackson. See ECF No. 14 at 1-2. OPR accordingly withdrew its Glomar response and summary-judgment motion and agreed to release to Parker all non-exempt records and to provide a Vaughn Index describing its withholdings. Id. The Court thus denied without prejudice as moot Plaintiff's motion for summary judgment. See Minute Order of Nov. 3, 2015.

Ginae Barnett, a Government Information Specialist with OPR, then processed Parker's FOIA request and identified 251 pages of responsive documents. See ECF No. 23-1 (Revised Third Declaration of Ginae Barnett), ¶¶ 1, 7. OPR released 18 pages in their entirety and, pursuant to Exemptions 5, 6, and 7(C), withheld 20 pages in part and 149 pages in full. It also referred 64 pages to other DOJ components—specifically, 56 to EOUSA, 6 to the Justice Management Division, and 2 to the Office of Information Policy—for processing and direct response to Parker. Id. , ¶¶ 8-13. OPR then prepared a Vaughn Index containing a description of the 20 pages that it had withheld in part and the 149 pages that it had withheld in full, along with the applicable FOIA exemption(s). Id. , Exh. C.

Having produced some records, withheld others, and referred a portion to other DOJ components, OPR believes it has satisfied its FOIA obligations and now renews its Motion for Summary Judgment. See ECF No. 23 (Def. Mot.). Parker, conversely, has filed a Cross-Motion to the same effect. See ECF No. 27 (Pl. Mot.). After reviewing the briefing, the Court ordered OPR to provide four documents for in camera review. See Minute Order of Sept. 26, 2016. The agency complied, see ECF No. 31, and, having reviewed the documents, the Court now proceeds to address the parties' contentions.

II. Legal Standard

Summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it is capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. SeeScott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Liberty Lobby , 477 U.S. at 248, 106 S.Ct. 2505. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion" by "citing to particular parts of materials in the record" or "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In the event of conflicting evidence on a material issue, the Court is to construe the conflicting evidence in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons , 466 F.3d 1086, 1087 (D.C. Cir. 2006).

FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep. , 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they "describe 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 nor by evidence of agency bad faith." Larson v. Dep't of State , 565 F.3d 857, 862 (D.C. Cir. 2009) (citation omitted). "Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter de novo.’ " Dep't of Justice v. Reporters Comm. for the Freedom of the Press , 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting 5 U.S.C. § 552(a)(4)(B) ).

III. Analysis

Congress enacted FOIA in order "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) (quotation marks and citation omitted). "The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." John Doe Agency v. John Doe Corp. , 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) (citation omitted). The statute provides that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules ... shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See id. § 552(a)(4)(B) ; Reporters Comm. , 489 U.S. at 754–55, 109 S.Ct. 1468. "At all times courts must bear in mind that FOIA mandates a ‘strong presumption in favor of disclosure.’ " Nat'l Ass'n of Home Builders v. Norton , 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep't of State v. Ray , 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) ).

As previously noted, the parties have cross-moved for summary judgment. In the course of the briefing, they have helpfully narrowed the issues remaining in dispute to three: (1) Whether Plaintiff is entitled to summary judgment as a matter of law because Defendant filed a Motion for Summary Judgment instead of an Answer; (2) Whether Defendant properly withheld portions of four documents pursuant to Exemptions 6 and 7(C); and (3) Whether OPR has satisfied its FOIA obligations in regard to the documents referred to EOUSA. Before addressing these in turn, the Court notes that Plaintiff does not challenge the adequacy of the search or the applicability of Exemption 5 to any of the records at issue. The Court thus need not discuss those topics.

A. MSJ vs. Answer

Plaintiff first asserts that because OPR did not file an Answer to his Complaint, but instead filed only a Motion for Summary Judgment, it is deemed to have admitted all matters alleged, thus entitling Parker to summary judgment as a matter of law. See Pl. Mot. at 4-5. Plaintiff cites no case law for this novel proposition; in fact, precedent cuts the other way. As another judge in this district explained, "A defendant ... is not required to respond in the form of an answer before making a motion for summary judgment, which may be made by a defending party ‘at any time.’ " Jones v. Dep't of Justice , 601 F.Supp.2d 297, 302 (D.D.C. 2009) (quoting Fed. R. Civ. P. 56(b) ) (citing Hubicki v. ACF...