Sheppard v. United States Dep't of Justice

BRYAN E. SHEPPARD, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

No. 4:17-cv-1037-NKL

United States District Court, W.D. Missouri, Western Division

September 21, 2021

ORDER

NANETTE K. LAUGHREY, United States District Judge

Under the Freedom of Information Act (“FOIA”) Plaintiff Bryan Sheppard is seeking records concerning a Department of Justice (“DOJ”) investigation into a 1988 arson prosecution in Kansas City, Missouri. See generally Doc. 17; Doc. 27; Doc. 88. The Court now GRANTS summary judgment in part based on the issues previously raised by the parties in their motions for summary judgment. See Doc. 17; Doc. 27. The DOJ shall produce the documents identified herein, with the appropriate redactions, to Mr. Sheppard within sixty days of this Order.^[1]

I. Factual Background

A. The Fire

In the early morning hours of November 29, 1988, six firefighters responded to a trailer fire, burning at a highway construction site in Kansas City, Missouri.^[2] Shortly after the firefighters arrived, the burning trailer, which contained 25, 000 pounds of ammonium nitrate and fuel oil, blew up, killing all six firefighters. Soon after, a second explosion occurred. The blasts were strong enough to knock “homes off foundations” and “could [be] heard [from] miles away.” Doc 27-2, at 8, 40.

State and federal investigators set out to determine whether arson caused the explosions. Originally, state officials investigated several individuals who resided in the area, and federal investigators focused on potential connections to organized crime. See Doc 102-1, at 91. In the state investigation, an informant implicated Mr. Sheppard, who lived near the explosion site. But the investigation was later abandoned “after [the] jailhouse informant [] was found to have fabricated his information and several other witnesses refused to testify after being housed with Sheppard in prison.” Id. The federal investigation also went dormant. Id.

B. The Prosecution

In 1994, the federal investigation was revived by a task force led by the Bureau of Alcohol, Tobacco and Firearms (“ATF”). The renewed investigation identified dozens of people who claimed to have heard admissions from five individuals about their involvement in the arson. Doc 102-1, at 91. Mr. Sheppard, as well as Darlene Edwards, Richard Brown, Earl “Skip” Sheppard, and George “Frank” Sheppard were all identified. Id. at 18. In 1996, those five individuals were indicted on arson charges. United States v. Sheppard, No. 96-CR-0085- FJG (W.D. Mo.). After a seven-week trial, a jury found all five defendants guilty of aiding and abetting an act of arson, and each defendant received a life sentence.^[3] Id.

C. Kansas City Star Articles

Between 2007 and 2009, the Kansas City Star (“the Star”) published articles alleging government misconduct in the Sheppard case. Doc. 102-1, at 89. The Star's “articles asserted that several government witnesses lied at trial, ” “government representatives used coercive tactics . . . to fabricate inculpatory evidence or to dissuade witnesses from testifying about exculpatory evidence, ” and “that suppressed and/or newly-discovered evidence indicated that persons other than the convicted defendants carried out the arson.” Id.; see also Doc. 27-2, at 39. For example, the Star reported that a “key witness in the case” said “she was pressured to lie at the trial about overhearing [the defendants] planning a theft at the construction site.” Doc. 27-2, at 12. Further, the Star reported that, in several respects, trial testimony conflicted with earlier statements made by the witnesses. Id. at 9.

D. Department of Justice Review

In July 2008, the United States Attorney for the Western District of Missouri asked the DOJ to review the Star's allegations. Doc. 102-1, at 93. The Office of the Deputy Attorney General assigned the DOJ's Criminal Division to review the allegations. Id. The Criminal Division Review Team (“Review Team”) included a Criminal Division prosecutor and a Special Agent from the DOJ's Office of Inspector General. A Special Agent from the ATF “was assigned to act as a liaison with the ATF, providing assistance in obtaining relevant reports and information.” Id.

Over the next three years, the Review Team “conducted an extensive investigation.” Id. This process included interviews with third parties who interacted with the prosecution during the criminal investigation and trial. The review team also interviewed law enforcement and agency personnel who helped with the criminal investigation and prosecution. The substance of each interview was documented in a Memoranda of Investigation (“MOI”). When the investigation closed in July 2011, the Review Team published a Final Memorandum describing its investigation and conclusions. Doc. 102-1, at 88. At first, the Final Memorandum was not public. After requests by the Star, a heavily redacted version was produced. Doc. 27-1, at 17; Doc. 22, at 1 n.1.

II. Procedural Background

In December 2017, Mr. Sheppard filed this case seeking documents from the DOJ's internal investigation. The case was originally assigned to Judge Smith and was reassigned in August 2020. While the case was assigned to Judge Smith, the parties filed cross motions for summary judgment. See Doc. 22; Doc. 27-1; Doc. 31; Doc. 32. Mr. Sheppard argued (1) the DOJ failed to conduct an adequate search, (2) the claimed exemptions did not apply, and (3) the DOJ did not release all reasonably segregable information. Judge Smith denied the parties' cross motions for summary judgment, finding that the DOJ had not conducted a sufficient search and a determination on the merits of Sheppard's claim could not be made until a sufficient search was completed.

Over the next year and half, between August 2019 and December 2020, the DOJ failed numerous times to comply with Judge Smith's orders, particularly regarding the adequacy of the DOJ's searches. Mr. Sheppard represented that, because the DOJ failed to conduct adequate searches, describe those searches with clarity, and compile a comprehensive Vaughn index, he was unable to effectively challenge the DOJ's withholdings. See e.g., Doc. 46; Doc. 73. Judge Smith found the DOJ's “efforts to avoid or forestall searching for responsive records . . . disconcerting, at best.” Doc. 47, at 17.

Judge Smith ultimately denied the parties' cross-motions for summary judgment because of the incomplete record and set deadlines by which the parties were to renew their motions. Neither party did so. Nevertheless, after subsequent productions by the DOJ positioned the matter for resolution, Judge Smith found that, “[b]ecause the parties have already briefed their legal arguments[, ] . . . all that is needed is the identification of which documents Plaintiff believes were wrongfully withheld and what portions of documents were improperly redacted.” Doc. 72.

Mr. Sheppard provided the Court with his identification of improperly withheld documents and redactions, and the Court heard oral argument. See Doc. 99. All that remains is to address the issues raised in the parties' previously filed motions for summary judgment.^[4]These issues are ripe, and further briefing is not necessary.^[5]

III. Legal Standard

A. Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure applies to FOIA cases. Miller v. U.S. Dep't of Agric., 13 F.3d 260, 262 (8th Cir. 1993). A defendant agency seeking summary judgment in a FOIA case must demonstrate that no material facts are in dispute, that it has conducted an adequate search for responsive records, and that each responsive record that it has located has been produced to the plaintiff or is exempt from disclosure. Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001); Miller v. U.S. Dep't of State, 779 F.2d 1378, 1382 (8th Cir. 1985). “The underlying facts, and the inferences to be drawn from them, are to be construed in the light most favorable to the FOIA requester.” Pollack, 879 F.2d at 409.

B. Freedom of Information Act (FOIA)

FOIA entitles interested parties to request records from government agencies and empowers federal courts to order that any record improperly withheld must be produced. See 5 U.S.C. § 552(a)(3)(A); 5 U.S.C. § 552(a)(4)(B); see also U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989). FOIA “expressly places the burden ‘on the agency to sustain its action' and directs the district courts to ‘determine the matter de novo.” Reporters Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). There is a “strong presumption in favor of disclosure” under FOIA. Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002).

That said, Congress exempted nine categories of documents from FOIA's broad sweep. 5 U.S.C. § 552(b). The statutory exemptions are to be “narrowly construed.” Nat'l Ass'n of Home Builders, 309 F.3d at 32 (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)); Hulstein v. Drug Enf't Admin., 671 F.3d 690, 694 (8th Cir. 2012).

IV. Disputed Documents

Mr. Sheppard identifies specific documents that he alleges the DOJ improperly redacted or withheld. See Doc. 88. Mr. Sheppard groups these documents into three categories: (1) the Final Memorandum - Vaughn Index Documents (“VID”)^[6] 69 and 121; (2) Memoranda of Investigation (“MOI”) - VID 9-14, 17, 23-38, 42-51, 58-61, 63, 65-68, 131-160, ^[7] and 549; and (3) Documents Created After the Final Memorandum was Submitted - VID 128-131, 521, and 527. Doc. 88, at 2-3.^[8]

A. Final Memorandum and Memoranda of Investigation

Mr Sheppard argues the Final Memorandum and MOIs should be released in full. The DOJ claims three exemptions, 6, 7(C), and 7(D), to justify redacting these documents.^[9] The DOJ...