DocuFreedom Inc. v. United States Department of Justice et al

Filing 30

MEMORANDUM AND ORDER. IT IS THEREFORE ORDERED BY THE COURT THAT DOJ's Motion forSummary Judgment is granted on Items 4, 10, 39, 49, and 50. IT IS FURTHER ORDERED THAT the parties must inform the court whether the court has resolved all claims in the case, and, if not, to propose a form of judgment to enter aspart of closing the case. The court directs the parties to contact Courtroom Deputy Megan Garrett at [e-mail] by December 20, 2019. Signed by District Judge Daniel D. Crabtree on 12/6/19. (hw)

Case 2:17-cv-02706-DDC-TJJ Document 30 Filed 12/06/19 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DOCUFREEDOM INC.,
Plaintiff,
Case No. 17-2706-DDC-TJJ
v.
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendant.

MEMORANDUM AND ORDER
This matter is before the court on United States Department of Justice’s (“DOJ”)
submission of items for the court’s in camera review. DOJ, the defendant in this action,
submitted these items so the court could decide whether two Freedom of Information Act
(“FOIA”) exemptions apply.
I.

Procedural History
Plaintiff DocuFreedom filed this lawsuit after defendant DOJ failed to respond to its

FOIA requests within the statutory time limit. Doc. 9 (Am. Compl.). DocuFreedom requested
that DOJ produce 119 items from the DOJ library and a series of emails. DOJ withheld 17 DOJ
Library items and certain redactions to emails.
DOJ moved for summary judgment, arguing its withholdings were proper under several
FOIA exemptions. Doc. 19. The court granted DOJ’s Motion for Summary Judgment in part
and denied it in part. Doc. 25. The court concluded that DOJ had fulfilled its duties under FOIA
for certain items and redactions. But the court reserved its summary judgment ruling on several
items because it could not conclude with reasonable certainty that FOIA exemptions applied
without conducting an in camera review of the items at issue. And so, the court ordered DOJ to

Case 2:17-cv-02706-DDC-TJJ Document 30 Filed 12/06/19 Page 2 of 10

produce Items 4, 6, 10, 37, 39, 49, and 50 for in camera review.1 DOJ produced these items on
September 30, 2019. After reviewing the Items at issue, the court concludes that DOJ properly
withheld Items 4, 10, 39, 49, and 50. The court thus grants summary judgment for DOJ on those
items.
II.

Legal Standard
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. IRS, 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 FOIA’s exemptions, 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

1

DOJ provided a portion of Item 4 and Items 6 and 37 to DocuFreedom on September 6, 2019.
Doc. 29 at 1. The court thus reviews only the unreleased portions of Item 4, and Items 10, 39, 49, and 50.

2

Case 2:17-cv-02706-DDC-TJJ Document 30 Filed 12/06/19 Page 3 of 10

any person requesting such record after deletion of the portions which are exempt.” Id. (quoting
5 U.S.C. § 552(b)).
III.

Analysis
A. Item 4
In its Motion for Summary Judgment, DOJ contended that Item 4 falls within one of

FOIA’s statutory exemptions to disclosure. See 5 U.S.C. § 552(b). DOJ asserted that each
document comprising Item 4 falls within Exemption 5, which applies to “inter-agency or intraagency memorandums or letters that would not be available by law to a party other than an
agency in litigation with the agency.” Id. § 552(b)(5). To qualify as exempt under (b)(5), the
documents must satisfy two conditions: (1) its source must be a government agency, and (2) it
must fall “within the ambit of privilege against discovery under judicial standards that would
govern litigation against the agency that holds it.” Raytheon Aircraft Co. v. U.S. Army Corps of
Eng’rs, 183 F. Supp. 2d 1280, 1287 (D. Kan. 2001) (quoting Dep’t of Interior v. Klamath Water
Users Protective Ass’n, 532 U.S. 1, 8 (2001)). Since DocuFreedom didn’t dispute that the
documents at issue in Item 4 came from a government agency, the court’s earlier Memorandum
and Order considered whether, under the second requirement, the documents were protected by
attorney work product privilege. See Doc. 25 at 17–18. So, the court ordered DOJ to produce
Item 4 for in camera review because it could not conclude with reasonable certainty that
Exemption 5 applied to all of Item 4. Doc. 25 at 17.
DOJ’s Revised Vaughn index2 describes Item 4 as an “[i]nternal DOJ webpage
containing various documents drafted by DOJ attorneys, including briefing papers, practice

2

A Vaughn index looks like a privilege log commonly used in civil litigation. And it functions in
much the same fashion. It lists each withheld (or partially withheld) document and explains why the
agency withheld the information. Kansas ex rel. Schmidt v. U.S. Dep’t of Def., 320 F. Supp. 3d 1227,
1238 n.2 (D. Kan. 2018) (citing Hull, 656 F.3d at 1178 n.2).

3

Case 2:17-cv-02706-DDC-TJJ Document 30 Filed 12/06/19 Page 4 of 10

guides, and commentaries on a variety of litigation issues.” Doc. 29-1 at 2 (revised Vaughn
index # 4). Item 4 has eight subparts. The court summarizes each subpart, below:


Item 4.1 (“Touhy Regulations”) is a “briefing paper . . . prepared as a handout for an
internal training presentation given to criminal AUSAs to train them on strategies for
responding to subpoenas or requests issues by defense counsel for the production of nonpublic DOJ documents in connection with criminal prosecutions.” Id. (# 4.1).



Item 4.2 (“Using Offers of Judgment to Help Settle a Case Motions Practice Seminar”) is
“training material . . . prepared for . . . the civil Motions Practice Seminar . . . [which]
instructs civil AUSAs and other DOJ attorneys on how to utilize motions practice to
advance the litigating position of the United States in civil lawsuits.” Id. at 3 (# 4.2).



Item 4.3 (“Using Offers of Judgment to Help Settle a Case”) is a “briefing paper . . .
prepared in the course of considering settlement in a particular lawsuit. The express
purpose of this document was to inform attorneys of settlement strategy.” Id. (# 4.3).



Item 4.4 (“Dispositive Motion Strategy in Personal Liability Cases”) is a “briefing
paper . . . written to assist civil division attorneys with litigating specific cases for the
federal government . . . [which] includes recommendations about key points that may
assist in the defense of cases.” Id. (# 4.4).



Item 4.5 (“Attorney’s Fees and Bivens”) is a “briefing paper . . . written to assist DOJ
attorneys with litigating pending or anticipated Bivens cases for the federal
government . . . [which] includes analysis of argument and case law and makes
recommendations on how to litigate the attorney’s fee issue.” Id. (# 4.5).



Item 4.6 (“Reconsideration Motions and Appeal Times”) is a “practice commentary . . .
written by a Senior Trial Counsel analyzing the intersection of various rules of procedure
to assist civil division attorneys with litigating constitutional torts cases for the federal
government.” Id. at 4 (# 4.6).



Item 4.7 (“Bivens Briefing Paper re: Ziglar v. Abbasi”) is a “briefing paper . . .
analyz[ing] the Supreme Court’s decision from the perspective of defense counsel and
giv[ing] direction on how best to use the case in ongoing and anticipated litigation
matters.” Id. (# 4.7).



Item 4.8 (“Border Searches and Seizures Counterterrorism Section National Security
Division”) is a “monograph . . . prepared by NSD attorneys to assist DOJ attorneys
litigating pending or anticipated cases relating to border searches on behalf of the federal
government.” Id. (# 4.8).
DOJ asserts work product protection exempts all of these documents from disclosure and

thus qualifies them for Exemption 5. Work product privilege turns on the document’s function.
4

Case 2:17-cv-02706-DDC-TJJ Document 30 Filed 12/06/19 Page 5 of 10

Nat’l Ass’n of Criminal Def. Lawyers v. Dep’t of Justice Exec. Office for U.S. Attorneys, 844
F.3d 246, 255 (D.C. Cir. 2016) (hereinafter NACDL). If a document serves no cognizable
adversarial function, it generally does not qualify as work product. Id. The court finds that work
product privilege applies all of the documents comprising Item 4 because each one serves an
adversarial function.
Item 4.1 is a handout for an internal training presentation. Training material may serve
an adversarial function—and thus deserve work product protection—where it “addresse[s] how
attorneys on one side of an adversarial dispute—federal prosecutors—should conduct litigation.”
NACDL, 844 F.3d at 255. Item 4.1 provides guidance on procedures to follow when responding
to subpoenas or requests for non-public DOJ documents in criminal prosecutions. Likewise,
Item 4.2 instructs federal prosecutors how to use Rule 69 offers of judgment to settle cases.
Items 4.1 and 4.2 are exempt from disclosure under Exemption 5 because they address how
prosecutors should conduct litigation.
Item 4.3 is a memorandum “explaining Rule 68 considerations prepared in relation to a
particular case in litigation.” Doc. 29-1 at 3. DOJ asserts that Item 4.3 was created for the
purpose of helping DOJ lawyers evaluate a settlement in a particular lawsuit. While Item 4.3
reveals no case strategy or case-specific legal analysis, it nonetheless is protected under the
work-product doctrine because “‘[a]ny part of [a document] prepared in anticipation of litigation,
not just the portions concerning opinions, legal theories, and the like, is protected by the work
product doctrine.’” Stein v. U.S. Dep’t of Justice, 134 F. Supp. 3d 457, 477 (D.D.C. 2015)
(quoting Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C. Cir. 1997)). Item 4.3 is exempt from
disclosure.

5

Case 2:17-cv-02706-DDC-TJJ Document 30 Filed 12/06/19 Page 6 of 10

Items 4.4–4.7 are briefing papers and commentaries written to assist DOJ attorneys with
specific kinds of cases or issues. Item 4.4 covers dispositive motion strategy in personal liability
cases. Doc. 29-1 at 3. Item 4.5 analyzes attorneys’ fees issues in Bivens actions and makes
recommendations about litigating such motions. Id. Item 4.6 is a commentary about the timing
of reconsideration motions and various rules of procedure. Id. at 4. And Item 4.7 analyzes the
Supreme Court case Ziglar v. Abbassi. It addresses procedural and practical considerations for
attorneys litigating an Abassi issue.
Even though these documents do not apply to specific cases, “‘[e]xemption 5 extends to
documents prepared in anticipation of foreseeable litigation . . . even if no specific claim is
contemplated.’” NACDL, 844 F.3d at 253 (quoting Schiller v. NLRB, 964 F.2d 1205, 1208 (D.C.
Cir. 1992), abrogated on other grounds by Milner v. U.S. Dep’t of Navy, 562 U.S. 562 (2011)).
Items 4.4–4.7 all were prepared in anticipation of litigation because they outline the legal
strategies of attorneys who litigate on the government’s behalf. Stein, 134 F. Supp. 3d at 479.
These items fall within the scope of work product protection because they present guidance
about “‘recurring, parallel factual settings and identical legal and policy considerations.’” Id.
(quoting FTC v. Grolier Inc., 462 U.S. 19, 30 (1983) (Brennan, J., concurring in part and
concurring in the judgment)). Disclosing these documents would benefit parties bringing claims
against the United States because that outcome would provide the opposing party with “‘the
benefit of the agency’s legal and factual research and reasoning, enabling [them] to litigate on
wits borrowed from’” DOJ. Id. (quoting Grolier, 462 U.S. at 30). DOJ thus properly withheld
Item 4 under Exemption 5.

6

Case 2:17-cv-02706-DDC-TJJ Document 30 Filed 12/06/19 Page 7 of 10

B. Item 10
Item 10 is titled “Expertise in the Civil Division.” The revised Vaughn index describes
this Item as a “DOJ intranet page identifying 500 different legal issues and statutes, along with
Civil Division attorneys with expertise and experience in those areas; [it is] intended to facilitate
discussion among DOJ attorneys and serve as a reference to DOJ attorneys.” Doc. 29-1 at 4
(revised Vaughn index # 10). DOJ first invoked Exemption 5, but the court already has found
that exemption 5 doesn’t apply because Item 10 wasn’t prepared in anticipation of litigation.
Doc. 25 at 23. Alternatively, DOJ asked the court to permit it to redact the names and contact
information of employees listed in the directory under Exemption 6. The court permitted DOJ to
provide DocuFreedom a redacted copy. And the court now evaluates whether DOJ also must
provide an unredacted version. For reasons explained below, the court concludes that DOJ
properly redacted the names and phone numbers of government employees under Exemption 6.3
“Exemption 6 of FOIA excuses disclosure of ‘personnel and medical files and similar
files the disclosure of which would constitute a clearly unwarranted invasion of personal
privacy.’” Trentadue v. Integrity Comm., 501 F.3d 1215, 1232 (10th Cir. 2007) (quoting 5
U.S.C. § 552(b)(6)). “‘Similar files’ refers broadly to ‘detailed government records on an
individual which can be identified as applying to that individual.’” Id. (quoting U.S. Dep’t of
State v. Washington Post Co., 456 U.S. 595, 602 (1982)); see also Forest Guardians v. FEMA,
410 F.3d 1214, 1217 (10th Cir. 2005) (holding that Exemption 6 has a “broad, rather than
narrow, meaning and encompasses all information that applies to a particular individual.”)

3

The court’s earlier Memorandum and Order provided that, “[i]f, after review, DocuFreedom does
not explicitly disclaim a challenge to these redactions, the court will address the propriety of DOJ’s
redactions when it addresses the remaining disputed claims.” Doc. 25 at 24. DocuFreedom hasn’t
disclaimed a challenge to DOJ’s redactions, so the court addresses those redactions in this Memorandum
and Order.

7

Case 2:17-cv-02706-DDC-TJJ Document 30 Filed 12/06/19 Page 8 of 10

(internal quotations and citation omitted). But the release of a list of names and other identifying
information does not always constitute a “clearly unwarranted invasion of personal privacy.”
Brown v. Perez, 835 F.3d 1223, 1235 (10th Cir. 2016).
Exemption 6 “requires an agency to balance an individual’s right to privacy against the
public’s interest in disclosure.” Al-Turki v. DOJ, 175 F. Supp. 3d 1153, 1177 (D. Colo. 2016).
“The only relevant public interest in disclosure to be weighed in this balance is the extent to
which disclosure would serve the core purpose of FOIA, which is contributing significantly to
public understanding of the operations or activities of the government.” Id. (internal quotations,
citations, and alterations omitted); see also Integrity Comm., 501 F.3d at 1234 (holding that
agency properly withheld names of law enforcement personnel accused of misconduct under
Exemption 6 because disclosing the employee names would shed little light on operation of the
government).
Item 10 is a directory of employees listing their specific area of expertise and work phone
number. DOJ expresses concern that “release of information which details the expertise of Civil
Division employees could lead to possible harassment.” Doc. 20-3 at 4 (Vaughn index # 10).
And, DOJ wants to maintain the privacy of individuals who are representing the government in
“cases of divided public opinion and heightened interest.” Doc. 20-2 (Allen Decl. at 7 (¶ 31)).
This kind of public exposure falls short of a “clearly unwarranted invasion of personal privacy.”
Integrity Comm., 501 F.3d at 1232. The document is merely a list of names, area of expertise,
and phone numbers. But, Exemption 6 “broadly exempts disclosure of all information that
‘applies to a particular individual.’” Schoenman v. FBI, 575 F. Supp. 2d 136, 159 (D.D.C. 2008)
(quoting U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982)). And public
access to names and phone numbers of these employees wouldn’t “contribut[e] significantly to

8

Case 2:17-cv-02706-DDC-TJJ Document 30 Filed 12/06/19 Page 9 of 10

public understanding of operations or activities of the government.” Al-Turki, 175 F. Supp. 3d at
1177 (internal quotations, citations, and alterations omitted). The court thus finds that DOJ
properly redacted the names and phone numbers of government employees in Item 10 under
Exemption 6.
C. Items 39, 49, and 50
DOJ invokes Exemption 5 for Items 38, 49, and 50. The court already has determined
that the attorney work product privilege likely applies to Items 39, 49, and 50 because they serve
an adversarial purpose. Doc. 25 at 22. Item 39 is a 369-page training manual on trial advocacy.
Id. It has chapters covering various stages of litigation from trial preparation to closing
arguments. Similarly, Item 50 is a 634-page manual covering criminal advocacy training. And
Item 49 is a manual focused on providing guidance to federal prosecutors to fulfill their criminal
discovery obligations.
The court reserved its summary judgment ruling on these items because “[i]n cases
involving voluminous or lengthy work-product records . . . it [is] generally preferable for courts
to make at least a preliminary assessment of the feasibility of segregating nonexempt material.”
NACDL, 844 F.3d at 256–57. Material is more likely to be segregable in long documents with
“‘logically divisible sections.’” Id. (quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air Force,
566 F.2d 242, 261 n.54 (D.C. Cir. 1977)).
After reviewing them, the court finds that no portion of Items 39, 49, or 50 is segregable.
Item 39 is a manual covering stages of litigation from grand jury proceedings to sentencing.
Each chapter serves an adversarial purpose because it instructs federal prosecutors how to
conduct each phase of litigation. Likewise, Item 50 is a more recent training manual with
chapters covering similar topics. Item 49 is a manual about criminal discovery obligations for

9

Case 2:17-cv-02706-DDC-TJJ Document 30 Filed 12/06/19 Page 10 of 10

federal prosecutors. Each chapter is about a different aspect of prosecutors’ federal criminal
discovery obligations. In sum, no part of Items 39, 49, or 50 is segregable because all sections
serve an adversarial purpose. DOJ properly withheld these items under Exemption 5.
IV.

Conclusion
DOJ properly withheld Items 4, 10, 39, and 49–50 under FOIA Exemptions 5 and 6. The

court thus grants summary judgment for DOJ on these Items.
IT IS THEREFORE ORDERED BY THE COURT THAT DOJ’s Motion for
Summary Judgment is granted on Items 4, 10, 39, 49, and 50.
IT IS FURTHER ORDERED THAT the parties must inform the court whether the
court has resolved all claims in the case, and, if not, to propose a form of judgment to enter as
part of closing the case. The court directs the parties to contact Courtroom Deputy Megan
Garrett at [e-mail] by December 20, 2019.
IT IS SO ORDERED.
Dated this 6th day of December, 2019, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

10