WISDOM v. UNITED STATES TRUSTEE PROGRAM

Filing 34

ORDER DIRECTING further briefing. The Court ORDERS that the parties shall include in their briefing (set by Minute Order of January 30, 2017) a discussion of the private and public interests implicated by the three performance evaluations produced for in camera review. Signed by Judge James E. Boasberg on 2/8/2017. (lcjeb1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ALLEN L. WISDOM,
Plaintiff,
v.

Civil Action No. 15-1821 (JEB)

UNITED STATES TRUSTEE PROGRAM,
Defendant.

MEMORANDUM OPINION AND ORDER
In a prior Memorandum Opinion, the Court refrained from resolving whether Defendant
had properly withheld in part performance evaluations for a former trustee – Jeremy Gugino –
under Freedom of Information Act Exemption 6; it instead ordered the United States Trustee
Program to produce these records for in camera review. See ECF No. 28. Defendant has since
supplied three such records. See ECF Nos. 31-33. Having now reviewed these documents, the
Court concludes that it would benefit from further briefing by the parties before deciding
whether the redactions therein are appropriate.
As the Court previously explained, to resolve this particular dispute, it must decide
whether Gugino’s privacy interest in the redacted information is outweighed by a public interest
in its disclosure. Wisdom v. U.S. Trustee Program, 2017 WL 149952, at *17-18 (D.D.C. Jan.
13, 2017); see also Am. Immigration Lawyers Ass’n v. Exec. Office for Immigration Review,
830 F.3d 667, 673-74 (D.C. Cir. 2016). Additional briefing on this question is necessary now for
two reasons.
First, USTP provided only a cursory description of these three documents in its earlier
round of summary-judgment briefing. In particular, Defendant’s Vaughn Index described them
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simply as Gugino’s “performance reviews” that it had redacted under Exemption 6 to prevent a
clearly unwarranted invasion of his personal privacy. See ECF No. 14, Exh. Y (2015-2053
Vaughn Index) (referencing pp. 10-23 (2012 Performance Review)); ECF No. 24, Exh. K (20162033 Vaughn Index) (referencing pp. 15-34 (2008 Performance Review); pp. 41-63 (2010
Performance Review)). Proceeding pro se, Plaintiff Wisdom thus had almost no idea what
information might be contained in them, and he certainly had but a scant basis to argue that such
material might advance a public interest. He nevertheless speculated that these records could
contain USTP discussions about the potential inadequacy of Gugino’s bond coverage while he
was administering bankruptcy cases. Wisdom is correct. The redacted records do in fact contain
narratives written by the agency, some of which discuss whether Gugino maintained the
adequate amount of bond coverage for the auctions that he contracted for as a trustee. As
Plaintiff has not yet had an adequate opportunity to present a refined argument as to the potential
public interest in such material, the Court believes that he should be given another chance to do
so with the content of these records now in clearer focus.
Second, there has been some confusion as to the scope of the redactions in these
documents. After USTP provided them for in camera review, it filed a notice with the Court
explaining that its earlier Vaughn Index contained a “pagination error” with respect to Gugino’s
final performance evaluation. See ECF No. 33 at 1. But this error goes beyond the mere fact
that the evaluation was listed as 14 pages when it is in fact longer. A comparison of the records
turned over to Wisdom, see ECF No. 18, Exh. B, and the document provided for in camera
review shows that the five pages Defendant omitted from its response to him were exclusively
narrative sections interspersed throughout the document (as opposed to a check-list evaluation).
This omission limited Wisdom’s ability to identify a public interest in the redactions

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because he could not have known that the records contained lengthy discussions about Gugino’s
conduct toward the public during his service as a trustee. These narratives, in fact, include an
additional page discussing Gugino’s compliance with the third “meetings of creditors” criteria,
an additional page on the ninth “TIRs and Operating Chapter 7 Reports” criteria, and three
additional pages talking about the thirteenth “Conduct of Trustee” criteria. Together, the length
of this final evaluation, especially in comparison to the previous shorter ones, shows that USTP
had in its possession much more extensive information about Gugino’s potential misuse of his
authority during the time in question, and that the agency discussed at length its response to that
information. Indeed, from the Court’s own review of these documents, they also contain
material that discusses additional complaints lodged against the former trustee – complaints that
were not otherwise included in the records previously turned over to Plaintiff.
The public does have some interest in these evaluations, as Defendant’s own affidavits in
the previous round of briefing concede, to the extent that they contain “information that would
shed light on the United States Trustee’s execution of its mission to oversee private trustees
under 28 U.S.C. § 586.” ECF No. 14-1 (Declaration of Joseph Carilli), ¶ 34; see also Dep’t of
Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989) (acknowledging
valid public interest in FOIA context where information would serve FOIA’s core purpose of
shedding light on agency’s performance of its statutory duties). Not only do these records appear
to include such material, but they also contain much more of it than Wisdom previously could
have surmised. As alluded to above, these omitted pages contain substantial discussions about
the nature and results of the agency’s response to and investigation of complaints lodged against
Gugino, as well as its communications to him about the same.
The question, of course, is whether such a public interest outweighs Gugino’s privacy

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interest in his evaluations. See Carter v. Dep’t of Commerce, 830 F.2d 388, 390-911 nn.8 & 13
(D.C. Cir. 1987). To give Plaintiff a fair shot at meeting his burden, the Court must give him
another chance to brief the issue as to these particular records. This issue, then, should also be
covered in the parties’ subsequent round of briefing.
For the reasons set forth above, the Court ORDERS that the parties shall include in their
briefing (set by Minute Order of January 30, 2017) a discussion of the private and public
interests implicated by the three performance evaluations.
SO ORDERED.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: February 8, 2017

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