        Case 1:12-cv-00843-ESH Document 106 Filed 02/05/16 Page 1 of 12



                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
HOWARD BLOOMGARDEN,                       )
                                          )
      Plaintiff,                          )
                                          )
             v.                           )                Civil Action No. 12-0843 (ESH)
                                          )
UNITED STATES DEPARTMENT                  )
OF JUSTICE,                               )
                                          )
      Defendant.                          )
_________________________________________ )


                                 MEMORANDUM OPINION

       Plaintiff Howard Bloomgarden brings this suit against the Department of Justice (“DOJ”)

to compel the production of records by the Executive Office for United States Attorneys

(“EOUSA”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. (Am. Compl.

[ECF No. 11].) 1 After DOJ successfully moved for summary judgment—claiming that no

responsive documents could be located—plaintiff appealed, and the case was remanded for

further proceedings when responsive documents were subsequently located. (See Jan. 22, 2014

Mem. Op. [ECF No. 31]; Dec. 10, 2014 Order [ECF No. 38].) DOJ then declined to produce

those documents, claiming various exemptions under FOIA, and the parties have now cross-

moved for summary judgment. (Pl.’s Mot. for Summ. J. [ECF No. 50-3]; Def.’s Mot. for Summ.

J. [ECF No. 69-1].) For the reasons stated below, defendant’s motion will be granted in part.



1
 Plaintiff has also filed a related suit against DOJ under the Administrative Procedure Act, 5
U.S.C. § 706, claiming that DOJ’s refusal to disclose the requested documents was contrary to
his constitutional rights. (See Compl., Case No. 15-cv-298 (ESH) (D.D.C. Mar. 2, 2015).) This
opinion pertains solely to plaintiff’s FOIA case.
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                                        BACKGROUND

       Plaintiff seeks to acquire documents from the disciplinary file of a former Assistant

United States Attorney (the “former AUSA”), who worked for DOJ in the Eastern District of

New York (“EDNY”) in the mid-1990s. (See Pl.’s Mot. for Summ. J. at 9-11.) Beginning in

January 1995, the former AUSA was the lead prosecutor in a state-federal investigation into

certain drug-related crimes, including the kidnapping and murder of Peter Kovach and Ted

Gould, which eventually led to plaintiff accepting a guilty plea in the EDNY. (Id. at 1, 7-8.) The

former AUSA was removed from plaintiff’s case in November 1995 (id. at 4), and his

termination by DOJ was later proposed in a thirty-five page disciplinary letter (the “Letter”),

which was accompanied by a table of contents and 3,649 pages of supporting evidence (together,

“the Disciplinary File”). (See Def.’s Mot. for Summ. J. at 5.) Plaintiff believes that the

Disciplinary File may show that the AUSA engaged in prosecutorial misconduct

                                                                                    . (See Pl.’s

Mot. for Summ. J. at 36.) If such a showing could be made, plaintiff believes that it could help

his effort to get a new trial before a California state court, where in 2014 he was convicted of the

Kovach-Gould murders. (See id. at 8-9.)

       In February 2015, prior to the filing of the pending cross-motions, the Court ordered DOJ

to produce an unredacted copy of the Letter for in camera review. (See Feb. 20, 2015 Order

[ECF No. 42].) Weeks later, the Court held a status conference at which it noted that the Letter

reflected the AUSA’s “professional failings,” but it questioned the public’s interest in learning

about an “inadequate, incompetent, sort of disobedient . . . employee.” (See Mar. 4, 2015

Hearing Tr. [ECF No. 45] at 20:20-22:5.) It also ordered DOJ to produce a Vaughn Index

outlining DOJ’s basis for withholding the entire Disciplinary File under the FOIA. (See Mar. 10,
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2015 Minute Order.) The Vaughn Index that DOJ submitted was, as the Court stated at a

November 2015 hearing, “useless [and] deficient” because it impermissibly lumped hundreds of

pages together in a single entry, making it impossible to understand which claimed exemptions

applied to which documents (and why). (See Nov. 4, 2015 Hearing Tr. [ECF No. 81] at 7:12-

23.) Nevertheless, having reviewed the Letter in camera, the Court did indicate that “it is

probably true that [the Letter was not created] for law enforcement purposes and so [Exemption

7(C)] does not apply. [Exemption 6 might apply], but it only applies to the Letter.” (Id. at

11:17-20.) The Court then confirmed this ruling from the bench at a January 2016 hearing: “I've

already ruled that the letter is not covered by [Exemption] 7(C) and that it is protected by

[Exemption] 6.” (Jan. 5, 2016 Hearing Tr. at 11:13-14.)

       Plaintiff now suggests that the Court’s ruling on the Letter was merely “tentative.” (See

Pl.’s Mot. for Vaughn Index [ECF No. 105] at 7 n.8.) Therefore, to dispel any further doubt on

that score, the Court issues the instant opinion.


                                            ANALYSIS

I. LEGAL STANDARD

       Summary judgment is appropriate if the pleadings and evidence on file show that there is

no genuine issue of material fact and that the moving party is entitled to judgment as a matter of

law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “In a FOIA case, summary

judgment may be granted to the government if ‘the agency proves that it has fully discharged its

obligations under the FOIA, after the underlying facts and the inferences to be drawn from them

are construed in the light most favorable to the FOIA requester.’” Fischer v. Dep’t of Justice,

596 F. Supp. 2d 34, 42 (D.D.C. 2009) (quoting Greenberg v. U.S. Dep’t of Treasury, 10 F. Supp.


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2d 3, 11 (D.D.C. 1998)). As relevant here, the agency has the burden to “prove that each

document that falls within the class requested . . . is wholly exempt from the [FOIA’s] inspection

requirements.” See Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978).


II. THE DISCIPLINARY LETTER

       Having reviewed the Letter in camera and having considered the extensive briefs and

arguments by the parties, the Court will rule on the exemptions relied on by defendant to justify

the withholding of the Letter. 2 Those exemptions are 7(C) and 6. 3


       A. Exemption 7(C)

       Exemption 7(C) protects from disclosure “records or information compiled for law

enforcement purposes, but only to the extent that the [disclosure] . . . could reasonably be

expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).

DOJ asserts that Exemption 7(C) applies because “[e]very document in the proposed removal

and the evidence supporting that proposal is related to, created for, or involves the prosecution of


2
  In his motion for a new Vaughn Index, plaintiff expressly seeks to include a description of the
Letter, suggesting that he is entitled to “as much information as possible in advance of briefing
before the Court.” (See Pl.’s Mot. for Vaughn Index at 7 n.8.) What plaintiff fails to recognize
is that DOJ’s current summary judgment briefing has provided ample information about both the
Letter and DOJ’s grounds for withholding it. (See Def.’s Mot. for Summ. J. at 5 (describing “an
approximately 35 page ‘Proposal’ letter detailing the justification and basis for removal of the
AUSA”); id. at 10-11 (Letter “describes ‘an inadequate, incompetent, sort of disobedient . . .
employee’” and was thus withheld under Exemption 6 to protect the AUSA’s privacy interest).)
3
  Although the Vaughn Index relies heavily on Exemption 5, its December 2014 FOIA response
to plaintiff, the Luczynski Declaration, and its summary judgment briefing all discuss only
Exemptions 6 and 7(C). (See Def.’s Mot. for Summ. J. at 10-19; Ex. 7 to Def.’s Mot. for Summ.
J. [ECF No. 67-7] ¶¶ 19-36; Ex. QQ to Pl.’s Mot. for Summ. J. [ECF No. 55].) Therefore, the
Court will treat any reliance on Exemption 5 as abandoned. See, e.g., Lowe v. Surface Transp.
Bd., 540 Fed. App’x 6, 7 (D.C. Cir. 2013) (“Offerors did not brief these issues; consequently,
they are abandoned.”).
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a criminal case.” (Def.’s Mot. for Summ. J. at 15.) By DOJ’s rationale, virtually all documents

in its possession would qualify, because they arguably have some attenuated “relat[ion] to” law

enforcement purposes. However, this states the test too broadly—a document is not exempt if it

is merely “related to” a criminal prosecution, but instead it must have been “compiled for” that

purpose. See 5 U.S.C. § 552(b)(7)(C); Stern v. F.B.I., 737 F.2d 84, 89 (D.C. Cir. 1984).

        Nor is it enough that a law enforcement agency, acting as an employer, compiled the

document as part of a supervisory investigation into its own employee’s conduct. See Kimberlin

v. Dep’t of Justice, 139 F.3d 944, 947 (D.C. Cir. 1998). Instead, to withhold an employee

disciplinary file under Exemption 7(C), DOJ must show that it focuses “directly on specifically

alleged illegal acts . . . of particular identified officials, acts which could, if proved, result in

civil or criminal sanctions.” See Rural Hous. Alliance v. U.S. Dep’t of Agric., 498 F.2d 73, 81

(D.C. Cir. 1974) (emphasis added). DOJ does not contend that its investigation of the former

AUSA involved any suspicion of illegal activity, or that the Letter made any such allegation.

Rather, the Letter arose out of precisely the type of run-of-the-mill employee discipline that falls

outside of Exemption 7(C).


        B. Exemption 6

        Like Exemption 7(C), Exemption 6 is concerned with the protection of personal privacy,

allowing agencies to withhold “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)(6). Because it unquestionably applies to the disciplinary records of federal employees

like the former AUSA, see Stern, 737 F.2d at 90, the Court must only determine whether




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disclosure would constitute a “clearly unwarranted” invasion of his privacy. This entails

balancing the public’s interest in disclosure against the former AUSA’s interest in privacy.


           1. Public Interest

       “[T]he only relevant public interest in the FOIA balancing analysis [is] the extent to

which disclosure of the information sought would ‘she[d] light on an agency's performance of its

statutory duties’ or otherwise let citizens know ‘what their government is up to.’” 4 U.S. Dep’t of

Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 497 (1994) (quoting U.S. Dep’t of Justice v.

Reporters Comm. For Freedom of Press, 489 U.S. 749, 773 (1989)). When, as here, the

information pertains to the alleged misconduct of a federal employee, relevant considerations

include the rank of the employee and seriousness of the allegations—the insubordination of a

rank-and-file employee is hardly a matter of national concern. See Kimberlin, 139 F.3d at 949.

However, as plaintiff rightly notes, the public also has an interest in knowing how the agency

dealt with the misconduct, i.e., whether it investigated in a timely fashion and, if necessary,

meted out discipline fairly and thoughtfully. See id. at 948.

       As regards the Letter, whatever light it might have shed on the internal operations of a

U.S. Attorney’s office in 1996 has been greatly diminished over the past twenty years. Cf.

Cochran v. United States, 770 F.2d 949, 959 n.15 (11th Cir. 1985) (“[T]here is a great public


4
 It is worth noting that, although plaintiff certainly has an “intense personal interest in obtaining
whatever information might bolster the Brady claims he is presenting” to the California court, his
personal interest is irrelevant to a FOIA balancing test. See Roth v. U.S. Dep’t of Justice, 642
F.3d 1161, 1177 (D.C. Cir. 2011). The Roth Court did recognize the public’s interest in the
exoneration of wrongfully convicted death-row inmates, but this narrow exception does not
apply here because California prosecutors are no longer pursuing the death penalty in plaintiff’s
case (see Pl.’s Mot. for Summ. J. at 9). See Taplin ex rel. Lacaze v. U.S. Dep’t of Justice, 967 F.
Supp. 2d 348, 356 (D.D.C. 2013) (citing Roth’s recognition of the public’s interest “in the
exoneration of individuals who have been sentenced to the ‘ultimate punishment’”).
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interest in insuring the dissemination of current, newsworthy information . . . particularly when

the information relates to the operations of government.”) (emphasis added). To be sure, there

can be historical value in exposing government activity from long ago. See, e.g., Rosenfeld v.

U.S. Dep’t of Justice, 57 F.3d 803, 811-12 (9th Cir. 1995) (strong public interest in an

overzealous, politically motivated investigation into student protestors twenty-five years earlier);

Rosenfeld v. U.S. Dep’t of Justice, 2012 WL 710186, at *8 (N.D. Cal. Mar. 5, 2012) (significant

public interest in documents suggesting that the FBI “used—or potentially abused—their

investigative powers in order to aid Ronald Reagan in a non-law enforcement capacity” decades

earlier). But this is simply not that case. Having examined the Letter, the Court finds that there

is little public interest in a single, largely unremarkable disciplinary matter regarding a former

AUSA who left government service two decades ago. Nor does the Letter reflect that “the

government dropped the ball” by not terminating the AUSA sooner. (See Pl.’s Reply Br. [ECF

No. 71-2] at 10.) Instead, it reflects an ongoing effort by DOJ to correct professional failings

until it became clear that warnings and corrective measures were not succeeding.

       Plaintiff is correct that federal prosecutors do weighty, important work, affecting matters

of “life, death, or lengthy incarceration.” (Id.) But it does not necessarily follow that everything

a prosecutor does is a matter of pressing public concern, especially as regards instances of

garden-variety incompetence and insubordination, and especially years and years after the fact.

Perhaps recognizing this hurdle, plaintiff also asserts a more contemporary public interest:

“[T]he fact that [the former AUSA] is a lawyer in private practice only heightens the public

interest in the documents,” because he remains admitted to practice before certain federal courts.

(See id.) However, as noted above, the only relevant public interest in disclosure is in showing

citizens “what their government is up to,” not whether a public servant who left the government
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twenty years ago is a capable attorney. See Reporters Comm. For Freedom of Press, 489 U.S. at

773 (emphasis added). Thus, the public’s interest in disclosure of the Letter is minimal.


            2. Privacy Interest

        It is an “indisputable proposition that disclosure of information identifying a particular

attorney as the subject of a dismissed disciplinary proceeding . . . would violate substantial

privacy interests of the attorney.” Carter v. U.S. Dep’t of Commerce, 830 F.2d 388, 394 (D.C.

Cir. 1987). And even if, as here, the government attorney has already been publicly identified,

the proceeding’s undisclosed details are still likely to be “personal and potentially embarrassing”

if revealed. See Parker v. U.S. Dep't of Justice, 68 F. Supp. 3d 218, 231 (D.D.C. 2014);

Kimberlin, 139 F.3d at 949 (disclosure of a “staff-level government lawyer[’s disciplinary file] . .

. would occasion an invasion of [his] privacy,” even though he had already been publicly

identified); see also Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Justice,

746 F.3d 1082, 1092 (D.C. Cir. 2014) (former congressman’s “privacy interest in the contents of

[his] investigative files is not insubstantial” even though he had publicly acknowledged that he

was under investigation). Although the events at issue occurred twenty years ago, “[t]he passage

of time, without more, does not materially diminish these interests.” See Schrecker v. U.S. Dep’t

of Justice, 349 F.3d 657, 666 (D.C. Cir. 2003). Indeed, as plaintiff himself notes, the former

AUSA remains an attorney in private practice, and so without question he has a strong interest in

avoiding decades-old disclosures that would likely cause him professional embarrassment. See

Dep’t of Air Force v. Rose, 425 U.S. 352, 380-81 (1976) (recognizing that ex-cadets, and

particularly those who continue to serve in the military, have a privacy interest in their student

disciplinary files).


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       Plaintiff also asserts that DOJ conceded, at a March 2015 hearing, that “any potential

claim to privacy on [the AUSA’s] part is moot if ‘there was an adjudication on the merits of the[]

allegations’” in his disciplinary file. (Pl.’s Reply Br. at 9.) He further contends that his other

FOIA requests have turned up evidence that such an “adjudication” did take place. (Id.)

Although not expressly styled as such, the Court construes this argument as one of waiver: if the

AUSA appealed his termination in a public proceeding before the Merit Systems Protection

Board (“MSPB”), then he arguably would have waived any expectation of privacy he might have

had in that subject matter. See Nation Magazine, Washington Bureau v. U.S. Customs Serv., 71

F.3d 885, 896 (D.C. Cir. 1995) (several public statements by former presidential candidate

waived his privacy interest in the subject matter of those statements). However, plaintiff bears

the initial burden to show what information has already been placed into the public domain,

Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1279 (D.C. Cir. 1992), and the Court finds that he

has failed to carry that burden. He has provided evidence only of an intra-agency determination

made by Dennis Corrigan, Chief of Staff to the Deputy Attorney General. (Ex. JJ to Pl.’s Mot.

for Summ. J. [ECF No. 53].) Both parties speculate that the AUSA may have appealed

Corrigan’s determination to the MSPB, but without more, there is simply no basis to find that the

AUSA waived his privacy interest in the proposed termination. 5



           3. Balancing




5
  Plaintiff has submitted to the Court evidence that the AUSA publicly challenged a different
DOJ determination—that he was a probationary employee who could be terminated at will—but
that issue is distinct from whether DOJ had sufficient grounds to terminate him for cause. (See
Ex. EE to Pl.’s Mot. for Summ. J.)
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       For Exemption 6 to apply, disclosure must cause a “clearly unwarranted” invasion of

privacy, and for the reasons already discussed, the Court finds that to be the case here. The

former AUSA has a strong interest in avoiding the professional embarrassment that disclosure

would likely cause, while the public has only a negligible need to know about a largely

unremarkable, decades-old disciplinary proceeding involving an entry-level prosecutor. A

similar result was reached in Parker, which also involved a FOIA request for the disciplinary file

of an AUSA. 68 F. Supp. 3d at 232. The court found that “[a]lthough there is a valid public

interest in knowing how defendant handled its investigation of former AUSA Jackson’s

unlicensed practice of law, the privacy interest at stake . . . outweighs that public interest because

this record details a specific proposed adverse employment action against Ms. Jackson that sheds

little light on defendant’s handling of the investigation.” Id. Just so here. In fact, the request in

Parker sought a more contemporary record of DOJ’s disciplinary procedures, so the public

interest was arguably greater than in the outdated Letter sought here. Accordingly, Exemption 6

allows the Letter to be withheld.


       C. Segregability

       Typically, Exemption 6 protects only personal identifying information within an

employee’s disciplinary file—it is this sensitive information that creates the “clearly

unwarranted” invasion of privacy, not the substance of the file itself. See Am. Immigration

Lawyers Ass’n v. Exec. Office for Immigration Review, 76 F. Supp. 3d 184, 191 (D.D.C. 2014)

(upholding redaction of personal information in employee disciplinary files that were otherwise

produced); Lewis v. U.S. Dep’t of Justice, 867 F. Supp. 2d 1, 17 (D.D.C. 2011) (“Information

protected under Exemption 6 includes such items as a person’s name, address, place of birth,


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employment history, and telephone number.”). However, if the substance of the file would allow

the employee to be identified—despite the redaction of the employee’s personal information—

then it may be withheld in its entirety. See Rose, 425 U.S. at 381 (“[I]f . . . deletion of personal

references and other identifying information is not sufficient to safeguard privacy, then the

summaries should not be disclosed . . . .”) (internal quotation marks omitted); see also Carter,

830 F.2d at 391.

       Here, redaction of the Letter would be ineffective, because plaintiff has already publicly

identified the former AUSA as its subject. (See, e.g., Compl. [ECF No. 1] ¶ 6; Pl.’s Statement of

Material Facts [ECF No. 26-1] ¶ 12; Pl.’s Mot. for Summ. J. [ECF No. 58-1] at 10.) Moreover,

plaintiff seeks the Letter as support for his assertion in a California court that misconduct by the

prosecutor entitles him to a new trial—his stated purpose is to connect the former AUSA

specifically with that alleged misconduct, and thus redaction would be fruitless. (See Ex. FF to

Pl’s. Mot. for Summ. J.) In other words, the Letter’s content and the former AUSA’s identity are

“inextricably intertwined.” Covington v. McLeod, 646 F. Supp. 2d 66, 72 (D.D.C. 2009) (FOIA

requester not entitled to redacted transcript of co-defendant’s grand jury proceeding because a

redacted version would still invade co-defendant’s privacy). And even if the former AUSA had

not been publicly identified as the Letter’s subject, the Court finds that the exhaustively detailed

thirty-five page Letter would allow others to identify him as the responsible U.S. Attorney in

each of the cases discussed therein. See Rose, 425 U.S. at 381. As such, it is clear that redaction

of his name and address would do nothing to avoid a “clearly unwarranted” invasion of his

privacy. See also Parker, 68 F. Supp. 3d at 232 (finding letter detailing a proposed adverse

employment action against a former AUSA “protected in its entirety by FOIA Exemption 6”).



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                                       CONCLUSION

       Accordingly, and for the reasons stated above, plaintiff’s motion for summary judgment

will be DENIED IN PART, and defendant’s motion for summary judgment will be GRANTED

IN PART. A separate order accompanies this Memorandum Opinion.



                                                               /s/
                                                   ELLEN SEGAL HUVELLE
                                                   United States District Judge

Date: February 5, 2016




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