BARTKO v. UNITED STATES DEPARTMENT OF JUSTICE et al

Filing 199

MEMORANDUM OPINION re 198 Order. Signed by Judge James E. Boasberg on 8/18/15. (lcjeb1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

GREGORY BARTKO,
Plaintiff,
v.

Civil Action No. 13-1135 (JEB)

UNITED STATES DEPARTMENT OF
JUSTICE, et al.,
Defendants.

MEMORANDUM OPINION
Plaintiff Gregory Bartko, currently serving a 23-year prison sentence for securities fraud,
is seeking to exonerate himself by proving prosecutorial misconduct. To that end, he has
brought this pro se suit under the Freedom of Information Act against many Department of
Justice components, including the Office of Professional Responsibility. This Court has already
issued several other Opinions discussing the merits of related FOIA requests in this case. See,
e.g., Bartko v. Dep’t of Justice, No. 13-1135, 2015 WL 513272 (D.D.C. Feb. 9, 2015). This
Opinion addresses the latest dispute between Bartko and OPR.
In seeking summary judgment, OPR asserts that it has released all of the responsive
documents that Plaintiff is entitled to receive and has properly withheld others pursuant to certain
FOIA exemptions. Bartko, conversely, believes that he is entitled to summary judgment and
requests that the Court compel the agency to release all withheld records. The Court sides with
OPR.

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I.

Background
As a prior Opinion set forth in some detail the factual background of this suit, see Bartko

v. Dep’t of Justice, 62 F. Supp. 3d 134, 138-40 (D.D.C. 2014), the Court will now describe only
those events that directly relate to the present Cross-Motions.
In early 2013, Plaintiff submitted FOIA requests to no fewer than seven federal agencies
and components, seeking information relating to his prosecution so that he could file a habeas
petition. See id. at 139. Dissatisfied with the substantive responses and lack of promptness
displayed by the government, he brought suit in this Court. Two years and countless rounds of
briefing later, Plaintiff and the Defendant agencies have finally begun to narrow their
disagreements concerning those agencies’ compliance – or lack thereof – with FOIA.
OPR, the Defendant agency at issue here, initially resisted disclosure when responding to
Bartko’s request; in fact, it issued a Glomar response, thereby refusing to confirm or deny the
existence of the documents that Plaintiff sought. See id. at 141-44; Phillippi v. CIA, 546 F.2d
1009, 1011-13 (D.C. Cir. 1976) (explaining that Glomar responses are exceptions to general rule
that agencies must acknowledge the existence of responsive information and explain why it has
been withheld). Finding this response inappropriate, the Court, on August 5, 2014, required
OPR to search for records relating to its then-ongoing investigation into Assistant U.S. Attorney
Clay Wheeler, the lead prosecutor in Bartko’s criminal trial. See Bartko, 62 F. Supp. 3d at 144.
To comply with that order, OPR conducted a search later that month and identified 441 pages of
responsive documents. See Mot., Exh. 1 (Fourth Declaration of Ginae Barnett), ¶¶ 3-11.
Because the investigation into Wheeler was still ongoing at that time, the agency experienced
some delays in processing the records; the Court consequently gave OPR until the end of January
2015 to complete the task. See ECF No. 124 (Order of December 11, 2014) at *2-3.

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Having processed these 441 pages of records, OPR produced to Plaintiff one page in full
and 12 in part, with redactions made pursuant to various FOIA exemptions. See Fourth Barnett
Decl., ¶ 8. It also withheld in full 102 pages and provided a Vaughn Index specifying which
exemptions it relied upon in these 114 total pages. See id., Tab D; see also Vaughn v. Rosen,
523 F.2d 1136, 1144 (D.C. Cir. 1975) (establishing practice of using the now-named Vaughn
Index). Finally, OPR referred six pages to the Office of the Inspector General and 320 pages to
the Executive Office of U.S. Attorneys. See Fourth Barnett Decl., ¶¶ 8-11.
Now that it has produced some records, withheld others, and referred the bulk of them to
other components, OPR believes that it has satisfied its FOIA obligations and seeks summary
judgment. Bartko, by contrast, believes that he is entitled to summary judgment and moves to
compel the release of all of the withheld documents. After reviewing the briefing in the case, the
Court ordered OPR to provide the 114 disputed pages to the Court for in camera review. See
Minute Order of June 30, 2015. The agency complied, and the Court has now reviewed all of the
documents.
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 genuine issue of material fact is one that would change the outcome of the litigation.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.”). 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). Factual assertions in the

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moving party’s affidavits or declarations may be accepted as true unless the opposing party
submits his own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly,
963 F.2d 453, 456 (D.C. Cir. 1992) (citation omitted).
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). Such affidavits or declarations “are accorded a presumption of good faith,
which cannot be rebutted by purely speculative claims about the existence and discoverability of
other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal
quotation marks and 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 (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
(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

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corruption and to hold the governors accountable to the governed.” John Doe Agency v. John
Doe Corp., 493 U.S. 146, 152 (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. “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
(1991)).
Although the parties’ Cross-Motions are, at times, difficult to follow inasmuch as they
often talk past each other, the Court can discern two separate issues: (1) whether only 114 pages
(or some larger number) are in dispute and (2) the propriety of the withholdings on these pages.
The Court will address the issues separately, noting first that Bartko does not dispute the
adequacy of OPR’s search, but only its withholdings.
A. Scope of Dispute
The parties cannot agree on which documents are at issue in this round of briefing, but
they have identified four potential categories:
•
•
•

102 pages withheld in full (plus an additional twelve withheld in part), located in
response to FOIA request F13-00032. See Def. Opp. & Reply at 3; Fourth
Barnett Decl., ¶¶ 8-14;
320 pages referred by OPR to EOUSA, located in response to FOIA request F1300032. See Pl. Cross-Mot. & Reply, Exh. 3 (Plaintiff’s Letter of December 26,
2014) at 1-2;
610 pages referred by OPR to EOUSA, located in response to FOIA request F1400098. See id.; Def. Opp. & Reply at 2-3;

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•

166 pages, whose whereabouts are currently unknown, located in response to
FOIA request F14-00098. See Pl. Cross-Mot. & Reply at 7; Def. Opp. & Reply
at 3.

Although Bartko and OPR, thankfully, concur that the propriety of the withholdings for
the first set of documents – the 114 pages withheld in full or in part – is currently before the
Court, they part ways as to whether the remaining categories are properly the subject of these
Motions.
The second and third batches – collectively 930 pages – were referred by OPR to
EOUSA pursuant to DOJ regulation, which provides:
When the component processing the request believes that a different
component, agency, or other Federal Government office is best able
to determine whether to disclose the record, the component typically
should refer the responsibility for responding to the request
regarding that record, as long as the referral is to a component or
agency that is subject to the FOIA. Ordinarily, the component or
agency that originated the record will be presumed to be best able to
make the disclosure determination.
28 C.F.R. § 16.4(d)(2)(i).
The third batch (610 pages) was the subject of the parties’ dispositive briefing and this
Court’s Opinion of May 6, 2015. See Bartko v. Dep’t of Justice, No. 13-1135, 2015 WL
2091229, at *7 (D.D.C. May 6, 2015). The Court there found that Plaintiff was not entitled to a
“public interest” fee waiver, and it thus required Bartko to pay the fees assessed by EOUSA or
forgo his quest for the records. See id. at *5-7. As the Court has already ruled on this group of
documents, Plaintiff is not entitled to another bite at that apple.
The second batch (320 pages) was not a topic of that prior Opinion. This is because the
Court’s Order of December 11, 2014, see ECF No. 123, permitted Plaintiff to amend his
Complaint against EOUSA only with respect to the 610-page referral from OPR and not any

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other claim. The 320-page batch, consequently, is not a subject of the operative Second
Amended Complaint and is thus not properly before the Court.
The fourth batch of documents, consisting of 166 pages of records, is the least clearly
briefed by the parties. Fortunately, the Court need not delay resolution of these Motions on this
account. As previously explained, these pages of records were located in response to FOIA
request F14-00098, which Bartko submitted directly to OPR on July 26, 2014. See Pl. CrossMot. & Reply, Exh. 2 (OPR’s Letter of September 10, 2014) at 1. These records were not
referred to another component or agency, but rather were withheld in full pursuant to Exemption
5. See id. The Court, as just mentioned, permitted Plaintiff to supplement his Complaint only
against EOUSA and only with respect to the 610 pages that OPR had referred to EOUSA as part
of processing that request. See ECF No. 123 (Order of December 11, 2013) at 3. He was also
advised then that he could bring another suit against OPR designated as “related” to this case,
advancing any other claims arising out of this later July 2014 FOIA request. See id. Having
failed to do as the Court ordered, it is unclear on what basis he now seeks relief.
The Court, in sum, will only address the first category of documents that the parties have
agreed is the subject of these Cross-Motions – 114 pages in total.
B. Exemptions 6, 7(C)
OPR relied on Exemptions 6 and 7(C) to withhold information contained on numerous
pages throughout the 114-page batch. See Fourth Barnett Decl., ¶¶ 23-27.
Exemption 6 protects “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)(6). Exemption 7(C) excludes “records of information compiled for law enforcement
purposes . . . to the extent that the production of such law enforcement records or information . . .

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could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(7)(C). Both provisions require agencies and reviewing courts to “balance the
privacy interests that would be compromised by disclosure against the public interest in release
of the requested information.” Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993)
(quoting Davis v. Dep’t of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992)).
Although both exemptions require agencies and reviewing courts to undertake the same
weighing of interests, the balance tilts more strongly toward nondisclosure in the context of
Exemption 7(C) because its “privacy language is broader than the comparable language in
Exemption 6 in two respects.” Reporters Comm., 489 U.S. at 756. First, Exemption 6
encompasses only “clearly unwarranted” invasions of privacy, while Exemption 7(C) omits the
adverb “clearly.” See id. Second, Exemption 6 prevents disclosures that “would constitute” an
invasion of privacy, while Exemption 7(C) targets any disclosures that “could reasonably be
expected to constitute” such an invasion. Id. Both differences are the result of specific
amendments, reflecting Congress’s conscious choice to provide greater protection to lawenforcement materials than to personnel, medical, and other similar files. See id. This Circuit
has accordingly held that Exemption 7(C) “establishes a lower bar for withholding material” than
Exemption 6. See ACLU v. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011); see also Beck, 997
F.2d at 1491.
If the withheld records were “compiled for law enforcement purposes,” the Court need
only address whether the agency has properly withheld these documents under Exemption 7(C),
and there is no requirement to consider the higher bar of Exemption 6. In determining if the
records were compiled for such purposes, “the focus is on how and under what circumstances the
requested files were compiled, and whether the files sought relate to anything that can fairly be

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characterized as an enforcement proceeding.” Jefferson v. Dep’t of Justice, Office of Prof’l
Responsibility, 284 F.3d 172, 176-77 (D.C. Cir. 2002) (internal quotation marks and citations
omitted). The court in Jefferson, furthermore, noted that “if [an] investigation is for a possible
violation of law, then the inquiry is for law enforcement purposes, as distinct from customary
surveillance of the performance of duties by government employees.” Id. at 177.
The D.C. Circuit has previously held that OPR records relating to the investigation of an
AUSA are compiled for law-enforcement purposes. In Kimberlin v. Dep’t of Justice, 139 F.3d
944 (D.C. Cir. 1998), an AUSA was accused of improperly disseminating information about a
DEA investigation, and the court found that OPR records relating to an investigation of that
incident were compiled for such purposes. The facts there are markedly similar to those here.
Both cases deal with an OPR investigation of an AUSA that was “conducted in response to and
focused upon [alleged wrongdoing] by a particular, identified official.” Id. at 947. The records
here, moreover, were not “maintained in the course of general oversight of government
employees.” Jefferson, 284 F.3d at 177; see also Kimberlin, 139 F.3d at 947 (“The investigation
was not aiming generally . . . to insure that [the agency’s] employees are acting in accordance
with statutory mandate and the agency’s own regulations.”) (second alteration in original). They
were, rather, compiled for the purpose of investigating AUSA Wheeler and his potential civil and
criminal liability. See Fourth Barnett Decl., ¶ 18; Def. Opp. & Reply at 8. Although Plaintiff is
correct that OPR has a dual law-enforcement and routine-oversight mission, the records that
Bartko seeks were clearly compiled to investigate possible violations of law.
This threshold question answered, the first step in the Exemption 7(C) analysis is to
determine whether there is, in fact, a privacy interest in the materials sought. See ACLU, 655
F.3d at 6. To constitute a privacy interest under FOIA, the claimed interest must be

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“substantial.” Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1229-30 (D.C. Cir. 2008); see
also Roth v. Dep’t of Justice, 642 F.3d 1161, 1174 (D.C. Cir. 2011) (discussing issue in depth).
“[S]ubstantial,” however, “means less than it might seem. A substantial privacy interest is
anything greater than a de minimis privacy interest.” Multi Ag Media, 515 F.3d at 1229-30.
In the context of Exemption 7(C), it is well established that “individuals have a strong
interest in not being associated unwarrantedly with alleged criminal activity.” Stern v. FBI, 737
F.2d 82, 91-92 (D.C. Cir. 1984); see also Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990)
(“It is surely beyond dispute that ‘the mention of an individual’s name in a law enforcement file
will engender comment and speculation and carries a stigmatizing connotation.’”) (quoting
Branch v. FBI, 658 F. Supp. 204, 209 (D.D.C. 1987)); Nation Magazine, Wash. Bureau v.
Customs Serv., 71 F.3d 885, 894 (D.C. Cir. 1995) (“[I]ndividuals have an obvious privacy
interest . . . in keeping secret the fact that they were subjects of a law enforcement
investigation.”). This privacy interest is strongest where the individuals in question “have been
investigated but never publicly charged at all.” ACLU, 655 F.3d at 7.
The Court must nevertheless bear in mind that AUSA Wheeler was a public official, who,
by definition, “may not have as great a claim to privacy as that afforded ordinarily to private
citizens.” Lesar v. Dep’t of Justice, 636 F.2d 472, 487 (D.C. Cir. 1980). “[T]he level of
responsibility held by a federal employee” and the type of wrongdoing committed by that
employee “are appropriate considerations” in the privacy analysis. See Stern, 737 F.2d at 92
(“There is a decided difference between knowing participation by a high-level officer in such
deception and the negligent performance of particular duties by the two other lower-level
employees.”).

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Given the public-accountability purposes of FOIA, affording high-level public officials
lesser privacy interests is logical, as their conduct and mistakes shed light on official government
positions. See id.; McMichael v. Dep’t of Defense, 910 F. Supp. 2d 47, 53 (D.D.C. 2012)
(Captain and Director of Logistics in U.S. Strategic Command had “leadership responsibilities”
and thus possessed diminished privacy interests). The actions or misconduct of lower-level
public officials, such as staff attorneys, by contrast, reveals little about the government’s
operations. See, e.g., Kimberlin, 139 F.3d at 949 (staff-level AUSA maintained privacy
interest); Jefferson, 284 F.3d at 180 (same); Am. Immigration Lawyers Ass’n v. Executive
Office for Immigration Review, No. 13-840, 2014 WL 7356566, at *5 (D.D.C. Dec. 24, 2014)
(immigration judges maintain substantial privacy interests as they are “unionized, nonsupervisory career civil servants selected through competitive vacancy announcements, as
opposed to political appointees or senior managers”); Trentadue v. Integrity Comm., 501 F.3d
1215, 1234-36 (10th Cir. 2007) (disclosure of names of “low-level employee[s] who committed
serious acts of misconduct . . . would shed little light on the operation of the government”).
On the Goliath-sized totem pole of government bureaucracy, AUSA Wheeler falls
between a staff-level career civil servant and a political appointee or senior manager. As Chief of
the Economic Crimes Division of the USAO for the Eastern District of North Carolina, he
presumably exercised some degree of supervisory authority greater than the ordinary line
prosecutor. This authority, nonetheless, does not approach that exercised by political appointees
or senior managers. To the extent that Wheeler generally possessed some degree of supervisory
authority, moreover, his actions of issue were primarily taken in the capacity of a line prosecutor
who tried Bartko’s case. Choosing between the two ends of the supervisory spectrum, then, his
job position is thus best classified – for the purposes of his privacy interests – as a staff attorney.

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Having not been publicly charged with any crime, therefore, Wheeler maintains a significant
privacy interest in not having the contents of an OPR investigation divulged to the public.
The Court must now balance this substantial privacy interest against the public interest in
releasing the records. In this analysis, the public interest is limited to FOIA’s “core purpose” of
“shed[ding] light on an agency’s performance of its statutory duties.” Reporters Comm., 489
U.S. at 773. Courts, moreover, must distinguish between the public interest that can generally
exist in a subject that relates to a FOIA request, and the public interest that might or might not be
served by disclosure of the specific records that are responsive to a given request. See Elec.
Privacy Info. Ctr. v. Dep’t of Defense, 355 F. Supp. 2d 98, 102 (D.D.C. 2004) (noting that the
fact that a plaintiff has provided evidence “that there is some media interest in data mining as an
umbrella issue does not satisfy the requirement that Plaintiff demonstrate interest in the specific
subject of Plaintiff’s FOIA request”). The key consideration is whether disclosure of the records
at issue would serve an identified public interest and therefore warrant the overriding of personal
privacy. See Lopez v. EOUSA, 598 F. Supp. 2d 83, 89 (D.D.C. 2009) (holding that EOUSA’s
Vaughn Index demonstrates that disclosure of the particular information withheld “is not likely
to advance any significant public interest, even if the plaintiff could establish that the public has
a significant interest in the material he is seeking”); but see Judicial Watch, Inc. v. U.S. Secret
Serv., 579 F. Supp. 2d 151, 154 (D.D.C. 2008) (holding that disclosure of names of individuals
requesting White House access for visitors was not precluded under [Exemption 7(C)] because
the names would shed light on why the visitor came to the White House). Finally, courts
routinely refuse to recognize any public interest in the disclosure of records that are sought to
assist someone who is challenging his conviction. See Dep’t of Justice Guide to the Freedom of

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Information Act at 586 (2009 ed.) (collecting cases), available at
http://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/exemption7c_0.pdf.
Here, Plaintiff repeatedly harps upon the general public interest in exposing prosecutorial
misconduct – an undeniably serious issue – but there is no indication that the specific records he
sought would reveal anything about the inner workings of DOJ or prosecutorial misconduct
generally. The Court’s in camera review, moreover, confirms that the records contain absolutely
no such information, but rather pertain to OPR’s evaluation of AUSA Wheeler’s conduct, its
handling of the Wheeler investigation, the sources of information it relied upon in conducting
this investigation, and potential consequences of the investigation. See also Fourth Barnett
Decl., ¶¶ 23-27. None of these specific records would reveal much, if anything, about systemic
prosecutorial misconduct such that any public interest in release would outweigh AUSA
Wheeler’s substantial privacy interests. Bartko, lastly, invokes comparisons between his
conviction and the prosecution of Senator Ted Stevens, see Pl. Cross-Mot. & Reply at 24, but the
Court agrees with Plaintiff’s concession that the two are of categorically distinct levels of public
importance. See id. OPR thus properly withheld the records under Exemption 7(C).
C. Exemption 5
In addition to Exemption 7(C), OPR applies Exemption 5 to approximately twenty
specific documents, which the Court has also reviewed in camera. FOIA Exemption 5 applies to
“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.” 5 U.S.C. § 552(b)(5). Withholdings
are restricted to “those documents, and only those documents, normally privileged in the civil
discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see also United
States v. Weber Aircraft Corp., 465 U.S. 792, 798-99 (1984). Exemption 5 encompasses three

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distinct components – namely, the deliberative-process privilege (sometimes referred to as
“executive privilege”), the attorney work-product privilege, and the attorney-client privilege.
See Am. Immigration Council v. Dep’t of Homeland Sec., 905 F. Supp. 2d 206, 216 (D.D.C.
2012). The first two are at issue here.
The deliberative-process privilege exempts from disclosure “documents reflecting
advisory opinions, recommendations, and deliberations comprising part of a process by which
governmental decisions and policies are formulated.” Sears, Roebuck & Co., 421 U.S. at 150. It
is intended “to enhance the quality of agency decisions by protecting open and frank discussion
among those who make them within the Government.” Dep’t of Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 9 (2001) (internal quotation marks and citations omitted). The
privilege “rests on the obvious realization that officials will not communicate candidly among
themselves if each remark is a potential item of discovery and front page news.” Id. at 8-9; see
also Dow Jones & Co. v. Dep’t of Justice, 917 F.2d 571, 573-74 (D.C. Cir. 1990). To fall under
the protection of the deliberative-process privilege, withheld material must be both
“predecisional” and “deliberative.” Mapother v. Dep’t of Justice, 3 F.3d 1533, 1537 (D.C. Cir.
1993). Material is “predecisional” if it was “generated before the adoption of an agency policy.”
Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). It is
“deliberative” if it “reflects the give-and-take of the consultative process.” Id.
The attorney work-product privilege, conversely, extends to “documents and tangible
things that are prepared in anticipation of litigation or for trial” by an attorney. Fed. R. Civ. P.
26(b)(3)(A). As this Court has noted in the past, the privilege is relatively broad, encompassing
documents prepared for litigation that is “foreseeable,” if not necessarily imminent. See Am.
Immigration Council, 905 F. Supp. 2d at 221. The privilege is not boundless, however:

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While it may be true that the prospect of future litigation touches
virtually any object of a [law-enforcement agency] attorney’s
attention, if the agency were allowed “to withhold any document
prepared by any person in the Government with a law degree simply
because litigation might someday occur, the policies of the FOIA
would be largely defeated.”
Senate of the Com. of Puerto Rico ex rel. Judiciary Comm. v. Dep’t of Justice, 823 F.2d 574,
586-87 (D.C. Cir. 1987) (quoting Coastal States Gas Corp., 617 F.2d at 865). When reviewing a
withholding under the work-product prong, the “‘testing question’ . . . is ‘whether, in light of the
nature of the document and the factual situation in the particular case, the document can fairly be
said to have been prepared or obtained because of the prospect of litigation.’” In re Sealed Case,
146 F.3d 881, 884 (D.C. Cir. 1998) (emphasis added) (quoting Senate of the Com. of Puerto
Rico, 823 F.2d at 586 n.42). At a minimum, the government must demonstrate that the lawyer
who prepared the document possessed the “subjective belief that litigation was a real possibility,
and that belief must have been objectively reasonable.” Id.
Here, OPR properly withheld records OPR-9, OPR-25, OPR-29, OPR-32, OPR-33, and
OPR-35 under the attorney work-product privilege. See Fourth Barnett Decl., ¶ 22. The Court’s
in camera review reveals that these records consist of emails from or to OPR attorneys or at their
instruction discussing the impact of a certain issue on the pending FOIA litigation. The release
of this information would reveal the mental processes of the attorneys involved in this litigation.
See Citizens For Responsibility & Ethics in Washington v. Nat’l Archives & Records Admin.,
583 F. Supp. 2d 146, 158-60 (D.D.C. 2008) (attorney work-product doctrine protects documents
prepared in course of different pending FOIA litigation). The privilege, consequently, was
properly invoked.

15

Defendant also properly withheld certain emails between OPR attorneys under the
deliberative-process privilege. Those emails – OPR-3, OPR-7 through -10, OPR-25, OPR-26,
OPR-29 through -36, and OPR-37 – contained deliberations relating to how OPR would proceed
in the investigation of AUSA Wheeler. See Fourth Barnett Decl., ¶¶ 20-21. They are, as
Defendant asserts, predecisional and deliberative because they reflect OPR’s decisionmaking
process in how to resolve the Wheeler investigation. See id., ¶ 21. The release of this
information could stifle frank and open discussion between OPR employees. See Klamath Water
Users Protective Ass’n, 532 U.S. at 9. Portions of those emails also deal with the impact of the
investigation on this pending FOIA litigation. See also Citizens For Responsibility & Ethics in
Washington, 583 F. Supp. 2d at 162.
Plaintiff nonetheless maintains that the deliberative-process privilege is inapplicable
because of the so-called government-misconduct exception, under which he must “provide an
adequate basis for believing that [the documents] would shed light upon government
misconduct.” Hall & Associates v. Envtl. Prot. Agency, 14 F. Supp. 3d 1, 9 (D.D.C. 2014)
(alteration in original) (internal quotations and citations omitted); see Pl. Cross-Mot. & Reply at
11-12.
This exception, as an initial matter, is construed very narrowly and applies only in cases
of extreme government wrongdoing. See Nat’l Whistleblower Ctr. v. Dep’t of Health & Human
Servs., 903 F. Supp. 2d 59, 66-68 (D.D.C. 2012); see also Neighborhood Assistance Corp. of
Am., v. Dep’t of Hous. & Urban Dev., 19 F. Supp. 3d 1, 14 (D.D.C. 2013) (citing cases in this
district recognizing “a similarly high benchmark [of] . . . nefarious or extreme government
wrongdoing”). It is not clear that Plaintiff’s allegations clear this rather high threshold, but, in
any event, in camera review of the documents reveals that they “do not reflect any governmental

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impropriety, but rather are part of the legitimate governmental process [conducted by OPR]
intended to be protected by Exemption 5.” Nat’l Whistleblower Ctr., 903 F. Supp. 2d at 68
(internal quotation marks and citation omitted).
D. Segregability
Finally, the Court must consider whether there are any reasonably segregable portions of
the information that should be released. See 5 U.S.C. § 552(b); see also Trans-Pacific Policing
Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999) (courts have sua sponte
obligation to consider segregability). In order to be considered reasonably segregable, the
information, if disclosed, must have some meaning. See Mead Data Ctr., Inc. v. Dep’t of the Air
Force, 566 F.2d 242, 261 n.55 (D.C. Cir. 1977) (“A court may decline to order an agency to
commit significant time and resources to the separation of disjointed words, phrases or even
sentences which taken separately or together have minimal or no information content.”); Nat’l
Sec. Archive Fund, Inc. v. CIA, 402 F. Supp. 2d 211, 220-21 (D.D.C. 2005) (finding no
reasonably segregable information existed because “the non-exempt information would produce
only incomplete, fragmented, unintelligible sentences composed of isolated, meaningless
words”) (internal quotation and citation omitted). The Court’s in camera review reveals that the
record contains many similar fragments of information, the release of which would carry no
informational value. Segregability is thus not required.
IV.

Conclusion
For the foregoing reasons, the Court will issue a contemporaneous Order denying

Plaintiff’s Motion for Summary Judgment and granting Defendant’s.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: August 18, 2015
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