Clark v. Executive Office for the United States Attorney's

• Court: District Court, District of Columbia
• Decided: March 4, 2009
• Docket: Civil Action No. 2005-0091
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHARLES CLARK, : : Plaintiff, : : v. : Civil Action No. 05-0091 (JR) : EXECUTIVE OFFICE OF UNITED : STATES ATTORNEYS, et al., : : Defendants. :

MEMORANDUM

Pro se plaintiff Charles Clark sued the Executive

Office of United States Attorneys and the Office of Information

and Privacy (both within the Department of Justice) seeking

documents related to plea negotiations between his defense

counsel and the government. Dkt. #1. In November 2005, I

granted summary judgment for the defendants after finding that

their search was adequate and that the withholding of any

documents was proper. Dkt. #27. The plaintiff appealed. After

oral argument before a panel of the Court of Appeals, the

defendants moved for voluntary remand in order to: “(1) conduct

an additional search of the two boxes of documents containing

[the plaintiff’s] case file in the USAO; (2) conduct a search of

the records of the Assistant U.S. Attorney who prosecuted the

case; and (3) file a supplemental declaration(s) describing the

additional searches, any responsive documents found, and any

additional documents released.” Dkt. # 41 ex. A. The panel granted the motion and remanded for “proceedings consistent”

therewith. Dkt. #51.

After performing new searches, the defendants turned

over thirteen pages of responsive material and withheld a four-

page draft plea agreement and two pages of handwritten notes as

unsegregable attorney work product under Freedom of Information

Act Exemption 5. 5 U.S.C. 552(b)(5). Before the court is the

defendant’s motion for summary judgment, asserting that the

searches were adequate and that Exemption 5 was correctly

invoked. Dkt. #47. Opposing the motion, the plaintiff argues

that the defendants have again failed to perform an adequate

search and that the work-product doctrine does not apply to the

withheld documents. Dkt. #49. Because the affidavits do

describe an adequate search that complied with the remand order,

and because the disputed documents were properly withheld, the

motion for summary judgment will be granted.

An agency must conduct “a search reasonably calculated

to uncover all relevant documents,” Morley v. C.I.A. 508 F.3d

1108, 1114 (D.C. Cir. 2007), and provide “reasonably detailed

affidavit[s], setting forth the search,” Iturralde v. Comptroller

of Currency, 315 F.3d 311 (D.C. Cir. 2003) (internal quotation

omitted), and explaining why any document was withheld, Military

Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.1981), or why

a record cannot be reasonably segregated, Armstrong v. Executive

- 2 - Office of the President, 97 F.3d 575, 578 (D.C. Cir. 1996). This

court reviews an agency’s withholdings de novo. 5 U.S.C.

§ 552(a)(4)(B).

A. Adequacy of the Search

The plaintiff concedes that the defendant has performed

“the course articulated by the remand negotiations had at the

appellate level,” Opp. at 4, and, after reviewing the affidavits,

I find that they sufficiently detail a reasonable search. The

plaintiff’s grievance is that the agency did not find a proposed

plea agreement referenced in a letter addressed to the

plaintiff’s counsel in 1991, Opp at 4; Dkt. 19-3, and he argues

that the defendants should have looked elsewhere for the

document, or conducted an investigation into whether the document

has been removed, lost, or destroyed. See generally, Opp. 4-15.

But neither adequate affidavits nor adequate searches can be

rebutted by “purely speculative claims about the existence and

discoverability of other documents.” SafeCard Services, Inc. v.

S.E.C., 926 F.2d 1197, 1201 (D.C. Cir. 1991). “[I]t is long

settled that the failure of an agency to turn up one specific

document in its search does not alone render a search

inadequate . . . . [because] particular documents may have been

accidentally lost or destroyed, or a reasonable and thorough

search may have missed them.” Inturralde, 315 F.3d 315.

- 3 - The plaintiff does not maintain “that the Department

failed to search particular offices or files where the document

might well have been found[,] . . . [or] that the [defendants]

failed or refused to interview government officials for whom

there was strong evidence that they might have been helpful in

finding the missing documents,” and “does not point to evidence

that would indicate that at the time the [defendant] searched its

files there was reason to believe that the [requested document]

was in those files.” Id. (internal citations and quotations

omitted). “When a request does not specify the locations in

which an agency should search, the agency has discretion to

confine its inquiry to a central filing system if additional

searches are unlikely to produce any marginal return . . . .”

Campbell v. U.S. Dept. of Justice, 164 F.3d 20 (D.C. Cir. 1998).

There is no indication that “obvious leads” turned up, Valencia-

Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir. 1999), and

Diaz stated that she is “not aware of any other records

pertaining to Clark which may be responsive to his FOIA request

other than . . . [those] contained in the criminal case

file . . . .” Diaz Decl. ¶¶ 5, 6.

B. FOIA Exemption 5

The statements in the Kornmeier declaration that the

handwritten notes and plea agreement were prepared in

anticipation of litigation and consist entirely of work product,

- 4 - Kornmeier Decl. ¶¶ 12, 13, are adequate to find that these

documents are covered by the work product doctrine, and that no

reasonably segregable portion of these documents could be

disclosed. See, Judicial Watch, Inc. v. Department of Justice,

432 F.3d 366, 369 (D.C. Cir. 1997) (“Any 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 and falls under exemption 5.”)

(internal quotation omitted). The plaintiff suggests no viable

argument for his position that these documents were not properly

withheld, nor does he make a “substantial showing of ‘necessity

or justification” to overcome [the doctrines] protections.”

F.T.C. v. Grolier, 462 U.S. 19, 24 (1993) (citing Hickman v.

Taylor, 329 U.S. 495 (1947).

Conclusion

For the reasons set out above, the defendants’ motion

for summary judgment, Dkt, #47, will be granted in an order that

accompanies this memorandum.

JAMES ROBERTSON United States District Judge

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