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    Legal Insurrection V Dist Columbia - FOIA Order

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    Legal Insurrection V Dist Columbia - FOIA Order

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    Legal Insurrection v Dist Columbia - FOIA Order

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    Legal Insurrection v Dist Columbia - FOIA Order

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    Legal Insurrection V Dist Columbia - FOIA Order

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    Legal Insurrection v Dist Columbia - FOIA Order

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    SUPERIOR COURT OF THE DISTRICT OF COLUMBIA Civil Division ‘WILLIAM JACOBSON, Plain iff, Case No. 2013 CA 003283 B Judge Robert Okun Calendar 10 DISTRICT OF COLUMBIA, et al, Defendants. OMNIBUS ORDER ON MOTIONS FOR SUMMARY JUDGMENT This matter is before the Court on two Motions: 1) Plaintiff's Motion for Partial ‘Summary Judgment (“Plaintiff's Motion”), filed August 15, 2014, Defendant's Opposition thereto, filed September 5, 2014, and Plaintiff's Reply, filed on September 12, 2014; and 2) Defendant’s Motion for Summary Judgment (“Defendant's Motion”), filed August 15, 2014, Plaintiff"s Opposition thereto, filed September 15, 2014, and Defendant’s Reply, filed September 19, 2014.' Upon consideration of the Motions, the Oppositions, the Replies, and the entire record herein, Plaintiff's Motion is granted in part, and Defendant’s Motion is granted in part. FACTUAL AND PROCEDURAL BACKGROUND This a dispute under the District of Columbia Freedom of Information Act, D.C. Code. § 2-531, ef seq., (*FOIA” ot “DC FOIA”) between Plaintiff Willi am Jacobson (“Plaintiff™) and, the District of Columbia (the “District”). Plaintiff is the owner and operator of Legal Insurrection Blog, an online blog focused on politics and law. (Compl. at § 2). On December 23, 2012, David Gregory, the former host of the television show “Meet the Press,” exhibited a high-capacity ammunition magazine on the air during an interview concerning firearm policies in Plaintiff originally brought this suit against the District of Columbia Office ofthe Attorney General (“OAG" the District of Columbia Metropolitan Police Department (“MPD”). In its February 27, 2014 Order, this Court substituted the District of Columbia for OAG and MPD. ‘Thus, although the case caption refers to “Defendants,” the Distiet of Columbia is the sole Defendant inthis case. and the United States. (Compl. at § 5). As of December 23, 2012, “Meet the Press” was filmed in Washington, DC, and the possession of high-capacity ammunition magazines was a violation of District of Columbia law. (Compl. at $4[6-7). MPD conducted an investigation of this incident, but OAG declined to prosecute anyone in connection with the broadcast. (Compl. at 8; PI's Statement of Undisputed Material Facts (“ SMF") at 3). On January 14, 2013, Plaintiff submitted a FOIA request to the District of Columbia Office of the Attorney General (“OAG") and the District of Columbia Metropolitan Police Department (“MPD”). (Compl. at § 10). Specifically, the FOIA request sought: 1. The January 9, 2013 letter from Lee Levine on behalf of David Gregory, referenced in the letter dated January 11, 2013 from Attorney General irvin B. "Nathan to Mr, Levine which was publicly disclosed on that date, 2. All communications between the District of Columbia Office of Attorney General and/or Metropolitan Police Department, on the one hand, and legal counsel for David Gregory and/or NBC News, on the other hand, with regard to the incident involving the display on television by Mr. Gregory of an alleged high-capacity ammunition clip (the “Gregory incident”) 3. All documents in the possession of the MPD and OAG regarding the Gregory Incident, to the extent not exempted from disclosure under applicable law, including but not limited to witness statements, evidence review and possession records, interview notes, and forensic testing. (Id). On February 20, 2013, the OAG informed Plaintiff that it was withholding certain responsive records pursuant to D.C. Code § 2-534(a)(3)(A)(i), (a)(4), and (). (Pls Mot. at 3; P's SMF at 46). On April 17, 2013, MPD produced certain responsive records to Plaintiff, but stated that it was withholding other responsive records pursuant to the exemptions of DC FOIA. (P's Mot. at 3; PL.’s SMF at § 7). Plaintiff filed the instant Complaint on May 13, 2013, arguing, that the Distri failed to comply with FOIA, and requesting that the Court “order Defendant{] to produce the requested public records without further delay.” (Compl. at 4). Following the filing of Plaintiff"s Complaint, Defendant produced additional records that were previously withheld, but Plaintiff argues that Defendant continues to withhold responsive records, (PI.'s Mot. at 4). In its Motion for Summary Judgment, Defendant argues that summary judgment is appropriate because the Distri 's search for responsive documents was reasonable, and it has produced all documents that were responsive to Plaintiff's request that were not subject to exemptions. (Def.’s Mot. at 2). Further, Defendant contends that it properly provided the legal jus ication for all withholdings in the form of a privilege log. (Id. at 7). Defendant asserts that many documents were redacted pursuant to exemptions 2 and 3, to avoid the disclosure of personal information that would constitute an unwarranted invasion of privacy. (Id. at 19). Additionally, Defendant states that the majority of the redacted information is exempt from disclosure pursuant to FOIA exemption 4, because it is protected by the attorney-client privilege, the deliberative process privilege, the work product doctrine, and/or the doctrine of prosecutorial immunity. (Id. at 21). In his Opposition, Plaintiff argues that Defendant’s Motion should be denied because Defendant has failed to meet its burden of proof as required under the law. (Pl.'s Opp. at 1-2). Specifically, Plaintiff asserts that the privilege log Defendant relies upon is inadmissible evidence, and, even if it were admissible, it does not sufficiently identify the documents, and the descriptions and reasoning contained therein are “vague and inadequate.” (/d. at 6, 7). Plaintitt also notes that the District did not submit any evidence to demonstrate that it satisfied the requirement to attempt to segregate exempt information from non-exempt information. (Id. at 8) Finally, Plaintiff alleges that the District’s search in response to Plaintiff's FOIA request was both untimely and unreasonable. (Id. at 11-12). In his Motion, Plaintiff argues that he is entitled to partial summary judgment and requests that the Court “order Defendant to conduct a reasonable search for all non-exempt responsive records and to produce all non-exempt, responsive records.” (PI.’s Mot. at 1). In support of his Motion, Plaintiff contends that Defendant has failed to meet the requisite burden of proof in a FOIA case because MPD failed to conduct a reasonable search and Defendant has not provided sufficient evidence to justify its withholdings. (Id. at 8-9). Plaintiff alleges that it ‘was unreasonable for MPD to limit its search for email records for only the seven-day period of December 21, 2012 through December 28, 2012. (Id, at 8). Additionally, Plaintiff argues that the privilege log Defendant has provided is not admissible evidence, and, even if itis, it does not satisfy the requirements of a proper Vaughn index in order to meet Defendant's burden because it does not provide sufficient details or reasoning for each withheld document. (Id. at 9). In Defendant’s Opposition to Plaintiff's Motion, Defendant relies on and incorporates the arguments made in Defendant's Motion for Summary Judgment. Specifically, Defendant maintains that MPD’s search of its records was reasonable, and that its privilege log is sufficient to justify the documents, or portions thereof, that are being withheld. (Def.’s Opp. at 6-10). ‘On August 15, 2014, the day the parties filed their Motions, MPD produced approximately two hundred ad ional responsive records to Plaintiff. (Def.’s Opp. at 5; Pl.'s Mot. at 9 n.4; Pl.’s Reply at 6). These additional documents were a result of MPD conducting a znew search in which it expanded the sources of its search and extended the time frame through January 31, 2013. (Decl. of David Brown, Att. as Ex. 7 to Def.’s Mot. for Extension of Time Nune Pro Tune; Def.’s Mot, at 16; Def.’s Opp. at 1.’s Reply at 6). Defendant contends that this new search was conducted after Plaintiff informally requested that MPD expand the time frame for its search on June 17, 2014. (Def.'s Mot. at 16; Def.’s Opp. at 5). On November 20, 2014, this Court conducted a hearing on the parties’ pending Motions. Plaintiff's counsel stated that, in light of the subsequent search conducted by Defendant on behalf of MPD for the time period beginning December 21, 2012 and ending January 31, 2013, Plaintiff is satisfied with the current scope of the MPD search. Furthermore, Plaintiff is not challenging the scope of the OAG search. Thus, Plaintiff is no longer questioning the adequacy of the search conducted in response to his FOIA request. However, Plaintiff continues to argue that the delay in conducting a proper search and producing the requested documents warrants awarding Plaintiff attomey fees. Additionally, Plaintiff continues to question the sufficiency of the privilege log, whether the withheld information falls within the specified exemptions, and whether Defendant properly segregated the exempt information from the non-exempt information. Following the hearing, Defendant submitted to the Court both the redacted and unredacted versions of the documents produced in its searches. This Court has now conducted an in camera review of those documents, and the pending Motions are ripe for resolution.” LEGAL DISCUSSION 1. Summary Judgment Standard in FOIA Cases Under Rule 56(c), summary judgment is appropriate if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits” show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Super. Ct. Civ. R. 56(¢); District of Columbia v. Fraternal Order of Police Metro. Police ® The Court conducted an in camera review of the documents because it was unable to determine whether they were properly withheld from a review of the Vaughn index. See District of Columbia v. Fraternal Order of Police, 33 ‘Ad 332, 344 (D.C, 2011) J. Ruiz, concurring) (“In eamera review may be particularly appropriate when either the agency affidavits are insufficiently detailed to permit meaningful review of exemption claims or... when the dispute turns on the contents of the withheld documents and not the parties’ interpretations of those documents...”) (citation omitted), Dep't Labor Comm., 75 A.34 259, 264 (D.C. 2013) (“Summary judgment is appropriate only when the record, including pleadings together with affidavits, indicates that there is no genuine {issue as to any material fact and that the moving party is entitled to judgment as a matter of Jaw? “

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