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

278 F.Supp.3d 446

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 August 16, 2017

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

Much like the story arc of a classic horror flick, the cast of disputed documents in this Freedom of Information Act reel has now been whittled down to one. Plaintiff Lonnie J. Parker initially requested records relating to the Government's discipline of a former Assistant United States Attorney in the Eastern District of Arkansas, who was caught prosecuting cases without a valid bar license. Defendant Department of Justice's Office of Professional Responsibility responded by identifying all relevant records, releasing some, withholding most (in part or in full), and referring still others to separate DOJ components—including the Executive Office for U.S. Attorneys—for processing. The Court's prior Opinion largely upheld those release decisions, but found that OPR had not explained the legal bases for withholdings made following the EOUSA referral. Defendant has since clarified that area of confusion.

Satisfied with that explanation, Parker turns to one final issue in this latest round of summary-judgment briefing. He points out that a letter from the EOUSA production is lacking its attachment. Despite OPR's retort that the attachment is both non-responsive and exempt from disclosure, the Court finds that Defendant must segregate and release a few paragraphs. Each side's Motion will thus be granted in part and denied in part.

I. Background

Because the prior Opinion sets forth the background, the Court skims over the bulk of the case's particulars. See Parker v. DOJ, 214 F.Supp.3d 79, 82–83 (D.D.C. 2016). Broadly speaking, this FOIA action pertains to Parker's request for 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 (Revised Third Declaration of Ginae Barnett), Exh. D (FOIA Request) at 1.

Although OPR initially neither confirmed nor denied that there was information pertaining to Bridges Jackson's bar-lapse discipline, the agency later decided to search for and release records. Parker, 214 F.Supp.3d at 83. It identified roughly 250 pages of responsive material, releasing some in their entirety, withholding (in part or in full) the majority, and referring the remainder to EOUSA and other DOJ components for processing. Id.; see Third Barnett Decl., ¶ 8.

The Court resolved several issues relating to this production in its earlier Opinion. Relevant here, it held that OPR had properly withheld portions of four challenged documents under FOIA Exemption 7(C)—which protects the privacy of individuals mentioned in law-enforcement records—and that no further material could be meaningfully segregated and released. See Parker, 214 F.Supp.3d at 85–89. As to 56 pages of documents referred to EOUSA, however, the Court found that OPR had improperly omitted "a description of the specific legal bases for EOUSA's withholdings." Id. at 90.

Defendant has now offered explanations for EOUSA's decisions in a renewed Motion for Summary Judgment. See ECF No. 39–2 (Declaration of David Luczynski), Exh. C (EOUSA Vaughn Index). Parker has responded with his own Cross–Motion.

II. Analysis

Before the Court reaches the dénouement of this case—regarding a missing attachment from an already-produced letter—it quickly disposes of two of the parties' preliminary arguments. First, following the Government's new explanations, Parker no longer challenges its withholding of the 56 pages of EOUSA materials at issue last time. See Def. Reply at 2–3; see also Parker, 214 F.Supp.3d at 90–91. Second, Plaintiff initially argues that OPR should have searched harder for the aforementioned attachment. See Pl. Mot. at 5–9. It turns out, however, that Defendant did look for the document after Parker prodded the agency to do so and, in fact, found it. See ECF No. 42–1, (Fifth Declaration of Ginae Barnett), ¶ 6. Plaintiff thus rightfully concedes that his "prior search objections, pertaining to Defendant's failure to perform this follow-up action, ha[ve] now been addressed." Pl. Reply at 5 & n.4. This search-adequacy challenge, too, can now be put to rest.

The lone surviving dispute, therefore, is whether OPR should produce that attachment—a document that was appended to a previously disclosed cover letter from U.S. Attorney Paula Casey found among the EOUSA records. See ECF No. 28–1 (Fourth Declaration of Ginae Barnett), Exh. A (EOUSA Response) at OPR–41 (May 26, 2000, Letter from Paula J. Casey, U.S. Att'y, E.D. Ark., to H. Marshall Jarrett, Counsel, OPR) at 1. The Casey Letter is addressed to the head of OPR and asks for his input on a five-day suspension of Bridges Jackson that was recommended "for reasons set forth in the enclosed draft letter." Id. That attachment, which the Court has reviewed in camera , is a draft letter to Bridges Jackson proposing such a suspension for conduct entirely unrelated to bar licensure.

Should the attachment be released? Answering this question involves examining, as an initial matter, whether it is responsive to Plaintiff's request and, next, if FOIA exemptions apply to all or parts of the document.

A. Responsive Records

The threshold inquiry is whether the draft document attached to the Casey Letter is even responsive to Parker's FOIA request. In other words, the statute only compels disclosure "once an agency identifies a record it deems responsive to a FOIA request." Am. Immigration Lawyers Ass'n v. Exec. Office for Immigration Review, 830 F.3d 667, 677 (D.C. Cir. 2016). Not so with non-responsive materials. While Plaintiff asked for all records regarding Bridges Jackson's bar-lapse discipline, the attachment, on its face, discusses only another unrelated disciplinary incident. OPR therefore contends that it is not responsive. See Def. Reply at 6–7.

Considered alone, it is unclear whether the document is encompassed by Parker's FOIA request. Yet the Court need not decide that issue, as it considers the draft letter's possible responsiveness as an attachment to an already-produced responsive record—namely, the Casey Letter.

It is not disputed that the Casey Letter is, in fact, responsive. Although it does not comment on Bridges Jackson's license to practice law or lack thereof, OPR found it in the "file pertaining to former AUSA Bridges Jackson's bar lapse." Fifth Barnett Decl., ¶¶ 3, 5–6. Presumably, as a result, the Government agrees that the Casey Letter is "a responsive document." Def. Reply at 7.

While this does not push Parker past the finish line, he is now off the starting block. Significantly, the D.C. Circuit recently held in AILA that "if the government identifies a record as responsive to a FOIA request," it cannot "redact particular information within the responsive record on the basis that the information is non-responsive." 830 F.3d at 677. In other words, a single record cannot be split into responsive and non-responsive bits. If the Casey Letter and its attachment are one record—i.e. , "a unit"—then FOIA requires disclosure of both together. Id.

The key is understanding what it means to be a single "record." While FOIA "provides no definition of the term ‘record,’ " agencies "in effect define a ‘record’ when they undertake the process of identifying records." Id. at 678 (emphasis added); see McGehee v. CIA, 697 F.2d 1095, 1108 (D.C. Cir. 1983). In an expansive bureaucracy, documents and information will not always fall into discrete sets. When collecting these materials together, an agency might combine pages into one document (e.g. , a set of handwritten notes) or split others into multiple parts (e.g. , a compendium of memoranda). "[T]he dispositive point is that, once an agency itself identifies a particular document or collection of material—such as a chain of emails—as a responsive ‘record,’ " then it must produce the whole, absent other statutory exemptions that allow redactions. AILA, 830 F.3d at 678. Courts may then review that determination.

DOJ also provides helpful criteria "for agencies to take into account when determining whether it is appropriate to divide ... a document into discrete ‘records.’ " Id. (citing DOJ, OIP Guidance: Determining the Scope of a FOIA Request, FOIA Update, Vol. XVI, No. 3 (1995), https://www.justice.gov/oip/blog/foia-update-oip-guidance-determining-scope-foia-request); see Shapiro v. CIA, No. 14-19, 247 F.Supp.3d 53, 74–75, 2017 WL 1216505, at *11 (D.D.C. Mar. 31, 2017). As Judge Christopher R. Cooper of this district ably summarized, those considerations include "the requester's intent, maintaining the integrity of the released documents, the scope of the request, the agency's own knowledge regarding storage and maintenance of documents, efficiency, cost, resource allocation, and maintaining the public's trust in transparency." Shapiro, 247 F.Supp.3d 53, 2017 WL 1216505, at *11.

The Court need only discuss a few of these factors, as they largely favor treating the Casey Letter and its attached draft letter as one indivisible whole. The Casey Letter, in fact, itself touches on the subject matter of the attachment and refers the recipient to examine its contents. See Casey Letter at 1 (pointing reader to "reasons set forth in the enclosed draft letter"); see also AILA, 830 F.3d at 678 (asking how "an agency itself identifies a particular document or collection of material"). While OPR notes that the enclosure was not initially found in the same location as the cover letter, that fact is not dispositive. See Def. Reply at 7; Fifth Barnett Decl., ¶¶ 3, 5–6. For...