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Docufreedom Inc. v. United States Department of Justice

United States District Court, D. Kansas

August 16, 2019

DOCUFREEDOM INC., Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE and KAREN MCFADDEN, Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge.

         Plaintiff DocuFreedom filed this lawsuit after defendant United States Department of Justice (“DOJ”) failed to respond to its Freedom of Information Act (“FOIA”) requests within the statutory time limit. Doc. 9 (Am. Compl.). In total, DocuFreedom requested that DOJ produce 119 items from the DOJ Library and a series of emails from defendant Karen McFadden, who coordinated DOJ's response to DocuFreedom's FOIA requests. DOJ since has produced 112 items in full and Ms. McFadden's emails in part. And now, only a handful of items remain in dispute: 17 DOJ Library items and certain redactions to Ms. McFadden's emails.[1]

         DOJ has moved for summary judgment, arguing its withholdings are proper under several FOIA exemptions. Doc. 19. DocuFreedom challenges some, but not all, of DOJ's withholdings. Doc. 22. And DOJ has filed a Reply. Doc. 23.

         Mindful of the delicate balance FOIA aims to achieve, the court reaches some conclusions but must defer others. First, the court grants summary judgment in DOJ's favor for certain items under the work product privilege contained in FOIA Exemption 5. But, the court denies summary judgment without prejudice on this record for the remaining items-the court directs DOJ to submit these items for in camera review and provide supplemental briefing. Second, the court grants summary judgment in DOJ's favor for the redactions to Ms. McFadden's emails, sustaining the deliberative process privilege invoked by DOJ and contained in FOIA Exemption 5. After discussing the facts governing this motion, the court explains its reasoning.

         I. Background

         A. Summary Judgment Facts

         The Justice Management Division (“JMD”) is a division of the United States Department of Justice. And within JMD is the Library Staff. The JMD Library Staff manages DOJ's Main Library and six other DOJ libraries (“JMD-controlled libraries”). JMD-controlled libraries maintain collections and other legal and general resources that DOJ employees use for their research needs.

         The JMD Library Staff also maintains the DOJ Libraries Online Catalog (“Catalog”). The Catalog lists materials, but the list is not limited to materials in the possession of the JMD-controlled libraries or otherwise held by JMD. For example, the Catalog includes materials held by libraries managed by other DOJ components. So, many materials in the Catalog only are accessible to employees of those other components.

         Over the course of 11 months, DocuFreedom made several FOIA requests to JMD. On February 7, 2017, JMD received a FOIA request from DocuFreedom. DocuFreedom requested a copy of the Catalog.

         On July 21, 2017, DocuFreedom requested the Catalog again, but in spreadsheet form. DocuFreedom also requested 37 items listed in the Catalog.

         On November 9, 2017, JMD received more FOIA requests from DocuFreedom. Namely, DocuFreedom asked JMD to produce 63 more items identified in the Catalog.

         On December 17, 2017, JMD received another series of FOIA requests from DocuFreedom. DocuFreedom requested emails to and from JMD employee Karen McFadden about DocuFreedom's FOIA requests. And, on January 3, 2018, DocuFreedom requested 19 more items listed in the Catalog.

         JMD acknowledged DocuFreedom's January 3, 2018, FOIA request in a timely fashion. But DocuFreedom failed to acknowledge the requests made on July 21 and November 9, 2017.

         On May 16, 2018, JMD began sending DocuFreedom materials in response to its FOIA requests. JMD sent DocuFreedom a searchable PDF of the Catalog (current as of May 19, 2017) and an Excel spreadsheet version of the Catalog (current as of January 11, 2018). Also, when possible, JMD's responses directed DocuFreedom to all publicly available material responsive to the FOIA requests.

         JMD produced some materials responsive to DocuFreedom's FOIA requests, but it withheld others based on exemptions or other statutory grounds. JMD tracked its response for each requested item on a production table. JMD gave DocuFreedom a copy of the production table, which outlined the production status for all 119 items requested from the Catalog.

         JMD produced all of Karen McFadden's responsive emails about DocuFreedom's FOIA requests. But JMD redacted portions of these emails based on FOIA Exemptions (b)(5) and (b)(6). JMD also withheld Items 2-13, 37, 39, 49-50, and 90. JMD asserted that it was withholding these items under Exemption (b)(5) of FOIA. And JMD withheld Item 10 under Exemption (b)(6). Last, JMD did not produce Items 19, 56, 86-87, and 97 because they were not in JMD's possession.

         B. Procedural History

         On December 13, 2017, DocuFreedom filed a Complaint in our court. Doc. 1. The Complaint asserts that defendants-by failing to respond to DocuFreedom's FOIA requests from July 21 and November 9, 2017-had violated FOIA, the Administrative Procedures Act (“APA”), and the Open Government Act of 2007. In March 2018, DocuFreedom filed an Amended Complaint (Doc. 9). It incorporates DocuFreedom's January 3, 2017, Catalog requests and its request for Ms. McFadden's emails.

         Defendants then moved to stay the case for 45 days. Doc. 10. The court granted the stay to allow defendants either to produce the requested materials or to identify applicable exemptions. Doc. 11. The court continued the stay as the parties worked to resolve the FOIA requests. Doc. 13. Ultimately, DOJ produced 102 of the 119 items in full and Ms. McFadden's emails with redactions. DOJ then moved for summary judgment (Doc. 19), asserting the remaining items and the redactions to Ms. McFadden's emails properly were withheld under several FOIA exemptions.

         II. Legal Standards

         A. FOIA

         FOIA was enacted “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976). “FOIA provides the public ‘a right of access, enforceable in court, to federal agency records, subject to nine specific exemptions.'” Hull v. I.R.S., 656 F.3d 1174, 1177 (10th Cir. 2011) (quoting Anderson v. Dep't of Health & Human Servs., 907 F.2d 936, 941 (10th Cir. 1990)); Trentadue v. Integrity Comm., 501 F.3d 1215, 1225-26 (10th Cir. 2007) (“Notwithstanding FOIA's aspiration of governmental transparency, Congress recognized that disclosure of certain classes of documents could harm legitimate government interests.”). Of the nine exemptions to FOIA, two matter in this case:

(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]

5 U.S.C. § 552(b).

         Several principles guide the court's analysis in FOIA cases. First, the court must broadly construe FOIA in favor of disclosure. Integrity Comm., 501 F.3d at 1226 (citation omitted). Second, the court must apply FOIA's exemptions narrowly. Id. (citation omitted). Third, FOIA directs government agencies to provide “[a]ny reasonably, segregable portion of a record . . . to any person requesting such record after deletion of the portions which are exempt.” Id. (quoting 5 U.S.C. § 552(b)).

         B. Summary Judgment

         “FOIA cases typically and appropriately are decided on motions for summary judgment.” Stein v. U.S. Dep't of Justice, 134 F.Supp.3d 457, 468 (D.D.C. 2015) (quoting Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice, 602 F.Supp.2d 121, 123 (D.D.C. 2009)). The district court reviews de novo the government's decision to withhold documents under any of FOIA's statutory exemptions. Id. (citation omitted). And, the government bears the burden to prove that the requested information falls within one of FOIA's nine exemptions. Hull, 656 F.3d at 1177 (citing 5 U.S.C. § 552(a)(4)(B)); Shapiro v. U.S. Dep't of Justice, 969 F.Supp.2d 18, 26 (D.D.C. 2013) (“Once [a FOIA] action is filed, the agency generally has the burden of demonstrating that its response to the plaintiff's FOIA request was appropriate.”) (citation omitted).

         Generally, a government agency submits affidavits to satisfy its burden of proof. Hull, 656 F.3d at 1177. Specifically,

[A]ffidavits must show, with reasonable specificity, why the documents fall within the exemption. The affidavits will not suffice if the agency's claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping. If the affidavits provide specific information sufficient to place the documents within the exemption category, if the information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of the documents.

Id. at 1177-78 (quoting Quiñon v. FBI, 86 F.3d 1222, 1227 (D.C. Cir. 1996)). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” Stein, 134 F.Supp.3d at 468-69 (quoting ACLU v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011)). If the government's affidavits or declarations leave more to be desired, the court-in its discretion-may order the agency to produce a Vaughn index[2] or to submit the requested information for in camera review. Hull, 656 F.3d at 1178 (citing Quiñon, 86 F.3d at 1227) (further citation omitted); see also N.Y. Times Co. v. U.S. Dep't of Justice, 758 F.3d 436, 438 (2d Cir. 2014) (“The Vaughn index procedure was developed to avoid the cumbersome alternative of routinely having a district court examine numerous multi-page documents in camera to make exemption rulings.”), supplemented, 762 F.3d 233 (2d Cir. 2014). In this case, DOJ has attached both declarations and a Vaughn index to its Memorandum in Support of Motion for Summary Judgment. Docs. 20-1 (Feldt Decl.), 20-2 (Allen Decl.), 20-3 (Vaughn Index).[3]

         III. Discussion

         DocuFreedom's Amended Complaint makes three claims. DocuFreedom asserts that DOJ violated FOIA by failing to respond within the statutory timeframe (Count I); that DOJ acted arbitrarily and capriciously in denying its requests under the APA (Count II); and that DOJ violated the Open Government Act of 2007 by failing to acknowledge receipt of DocuFreedom's FOIA requests (Count III). Doc. 9 at 20-21 (Am. Compl. ¶¶ 56-68). ...


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