Bagwell v. U.S. Dep't of Justice

311 F. Supp. 3d 223
CourtCourt of Appeals for the D.C. Circuit
DecidedMarch 22, 2018
DocketCase No. 15–cv–0531 (CRC)
StatusPublished
Cited by21 cases

This text of 311 F. Supp. 3d 223 (Bagwell v. U.S. Dep't of Justice) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bagwell v. U.S. Dep't of Justice, 311 F. Supp. 3d 223 (D.C. Cir. 2018).

Opinion

CHRISTOPHER R. COOPER, United States District Judge

Ryan Bagwell, an alumnus of Pennsylvania State University, filed a request under the Freedom of Information Act ("FOIA") with the Executive Office for United States Attorneys ("EOUSA") seeking records related to investigations into allegations of child sexual abuse on the University's campus. The parties have now filed cross-motions for summary judgment concerning three aspects of EOUSA's response: (1) its search of email accounts in the U.S. Attorney's Office for the Middle District of Pennsylvania, which oversaw a criminal investigation into the allegations;

*227(2) its referral of records to other agencies for review; and (3) its withholding of records under FOIA Exemptions 5 and 7(A). The Court concludes-for the second time in this case-that the Department of Justice has failed to carry its burden of detailing an adequate search. It also finds that the Department has improperly withheld a set of records that it referred to the Department of Education and has inadequately justified its withholding of a set of Pennsylvania state grand jury materials under Exemption 7(A). However, the Court will sustain all but one of the Department's withholdings under Exemption 5. The Court will, accordingly, grant and deny both motions in part.

I. Background

As this case has been here before, the Court will only briefly recount the relevant factual background. Both the U.S. Attorney's Office for the Middle District of Pennsylvania (the "U.S. Attorney's Office") and the Pennsylvania Attorney General's Office oversaw criminal investigations into allegations of child sexual abuse by former Penn State assistant football coach Jerry Sandusky. In addition, former FBI Director Louis Freeh and his law firm were retained by Penn State's Board of Trustees to conduct an internal investigation into the Sandusky matter. Seeking material related to those investigations, in April 2014, Plaintiff Ryan Bagwell filed a FOIA request with EOUSA for "any and all records of investigations between November 1, 2011 and [April 30, 2014] that pertain to allegations of child sexual abuse that occurred on the campus of The Pennsylvania State University." Compl. ¶ 5. When EOUSA failed to timely respond, Bagwell filed suit against EOUSA's parent agency, the Department of Justice.

After the suit was filed, EOUSA produced 517 pages of records to Bagwell and withheld another 104 pages. The parties then filed cross-motions for summary judgment, with Bagwell challenging the adequacy of the Department's search and its withholding of documents. The Court concluded that the Department had not provided enough information to allow for resolution of the motions at that juncture. Bagwell v. U.S. Dep't of Justice, 2015 WL 9272836, at *1 (D.D.C. Dec. 18, 2015).

As to Bagwell's challenge to the adequacy of the search, the Court identified two concerns it had regarding the search performed. First, it was unclear whether or how the Department had searched the U.S. Attorney's Office email system for responsive emails. Id. at *2. Second, even though former Director Freeh had made public remarks indicating that his firm had communicated with the U.S. Attorney's Office regarding the investigation, the Department's search had not uncovered any such communications or related documents. Id. Because the Department's supporting declarations failed to address these concerns, the Court was left "in substantial doubt as to the sufficiency of the search." Id. Similarly, the Court held that the Department's Vaughn index and declarations were not adequately detailed to justify the withholdings it had made. Id. at *4-5. The Court therefore deferred resolution of the cross-motions and directed the Department to "conduct any necessary additional searches, and file a supplemental memorandum in support of its motion for summary judgment, including additional affidavits and a revised Vaughn index." Id. at *5.

Following that Order, the Department performed a second search, including one of the U.S. Attorney's Office email system. To conduct that search, the Department identified six staff positions that were most likely to have potentially responsive emails in their email accounts: the U.S. Attorney, the First Assistant U.S. Attorney, the Criminal Chief, the Deputy Criminal Chief, *228Assistant U.S. Attorney One, and Assistant U.S. Attorney Two. Second Simpson Decl. ¶ 11. It then searched these accounts for emails (and attachments) during the relevant time period containing four search terms: "Pennsylvania State University," "Child sexual abuse and Pennsylvania State University," "Sandusky," and "Freeh." Id. ¶ 12. Upon completion of its search, the Department produced an additional set of documents to Bagwell, while also making further withholdings.

After the second round of productions, the Department renewed its motion for summary judgment, filing supplemental declarations and Vaughn indices. See Def.'s Mem. P. & A. Supp. Renewed Mot. Summ. J. ("Def.'s MSJ").1 Bagwell filed a cross-motion for summary judgment, again challenging the adequacy of the search and the Department's withholdings. See Pl.'s Mem. P. & A. Opp'n Def.'s Mot. Summ. J. & Supp. Pl.'s Cross-Mot. Summ. J. ("Pl.'s MSJ"). The Court held a hearing on the cross-motions on February 28, 2018. Based on the arguments presented in the briefing and at the hearing, the Court will grant in part and deny in part both motions, as detailed below.

II. Legal Standard

Summary judgment is appropriately granted if the moving party shows that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). FOIA cases "typically and appropriately are decided on motions for summary judgment." Def. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). The Court can award summary judgment to an agency if it "proves that it has fully discharged its obligations under FOIA, after the underlying facts and inferences to be drawn from them are construed in the light most favorable to the FOIA requester." Tushnet v. ICE, 246 F.Supp.3d 422, 431 (D.D.C. 2017).

The first such obligation an agency must fulfill is to conduct an adequate search for the requested records. See, e.g., Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). For a search to be adequate, an agency must show "beyond material doubt that its search was reasonably calculated to uncover all relevant documents." Ancient Coin Collectors Guild v. U.S. Dep't of State,

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Bluebook (online)
311 F. Supp. 3d 223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bagwell-v-us-dept-of-justice-cadc-2018.