                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 LONNIE J. PARKER,

        Plaintiff,
                v.                                          Civil Action No. 15-1070 (JEB)
 UNITED STATES DEPARTMENT OF
 JUSTICE, OFFICE OF PROFESSIONAL
 RESPONSIBILITY,

        Defendant.


                                  MEMORANDUM OPINION

       Much like the story arc of a classic horror flick, the cast of disputed documents in this

Freedom of Information Act reel has now been whittled down to one. Plaintiff Lonnie J. Parker

initially requested records relating to the Government’s discipline of a former Assistant United

States Attorney in the Eastern District of Arkansas, who was caught prosecuting cases without a

valid bar license. Defendant Department of Justice’s Office of Professional Responsibility

responded by identifying all relevant records, releasing some, withholding most (in part or in

full), and referring still others to separate DOJ components — including the Executive Office for

U.S. Attorneys — for processing. The Court’s prior Opinion largely upheld those release

decisions, but found that OPR had not explained the legal bases for withholdings made following

the EOUSA referral. Defendant has since clarified that area of confusion.

       Satisfied with that explanation, Parker turns to one final issue in this latest round of

summary-judgment briefing. He points out that a letter from the EOUSA production is lacking

its attachment. Despite OPR’s retort that the attachment is both non-responsive and exempt from




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disclosure, the Court finds that Defendant must segregate and release a few paragraphs. Each

side’s Motion will thus be granted in part and denied in part.

I.     Background

       Because the prior Opinion sets forth the background, the Court skims over the bulk of the

case’s particulars. See Parker v. DOJ, 214 F. Supp. 3d 79, 82-83 (D.D.C. 2016). Broadly

speaking, this FOIA action pertains to Parker’s request for records “regarding any investigation

or consideration of disciplinary actions involving the unauthorized practice of law by former

Assistant U.S. Attorney Lesa Gail Bridges Jackson.” ECF No. 23-1 (Revised Third Declaration

of Ginae Barnett), Exh. D (FOIA Request) at 1.

       Although OPR initially neither confirmed nor denied that there was information

pertaining to Bridges Jackson’s bar-lapse discipline, the agency later decided to search for and

release records. Parker, 214 F. Supp. 3d at 83. It identified roughly 250 pages of responsive

material, releasing some in their entirety, withholding (in part or in full) the majority, and

referring the remainder to EOUSA and other DOJ components for processing. Id.; see Third

Barnett Decl., ¶ 8.

       The Court resolved several issues relating to this production in its earlier Opinion.

Relevant here, it held that OPR had properly withheld portions of four challenged documents

under FOIA Exemption 7(C) — which protects the privacy of individuals mentioned in law-

enforcement records — and that no further material could be meaningfully segregated and

released. See Parker, 214 F. Supp. 3d at 85-89. As to 56 pages of documents referred to

EOUSA, however, the Court found that OPR had improperly omitted “a description of the

specific legal bases for EOUSA’s withholdings.” Id. at 90.




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       Defendant has now offered explanations for EOUSA’s decisions in a renewed Motion for

Summary Judgment. See ECF No. 39-2 (Declaration of David Luczynski), Exh. C (EOUSA

Vaughn Index). Parker has responded with his own Cross-Motion.

II.    Analysis

       Before the Court reaches the dénouement of this case — regarding a missing attachment

from an already-produced letter — it quickly disposes of two of the parties’ preliminary

arguments. First, following the Government’s new explanations, Parker no longer challenges its

withholding of the 56 pages of EOUSA materials at issue last time. See Def. Reply at 2-3; see

also Parker, 214 F. Supp. 3d at 90-91. Second, Plaintiff initially argues that OPR should have

searched harder for the aforementioned attachment. See Pl. Mot. at 5-9. It turns out, however,

that Defendant did look for the document after Parker prodded the agency to do so and, in fact,

found it. See ECF No. 42-1, (Fifth Declaration of Ginae Barnett), ¶ 6. Plaintiff thus rightfully

concedes that his “prior search objections, pertaining to Defendant’s failure to perform this

follow-up action, ha[ve] now been addressed.” Pl. Reply at 5 & n.4. This search-adequacy

challenge, too, can now be put to rest.

       The lone surviving dispute, therefore, is whether OPR should produce that attachment —

a document that was appended to a previously disclosed cover letter from U.S. Attorney Paula

Casey found among the EOUSA records. See ECF No. 28-1 (Fourth Declaration of Ginae

Barnett), Exh. A (EOUSA Response) at OPR-41 (May 26, 2000, Letter from Paula J. Casey, U.S.

Att’y, E.D. Ark., to H. Marshall Jarrett, Counsel, OPR) at 1. The Casey Letter is addressed to the

head of OPR and asks for his input on a five-day suspension of Bridges Jackson that was

recommended “for reasons set forth in the enclosed draft letter.” Id. That attachment, which the




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Court has reviewed in camera, is a draft letter to Bridges Jackson proposing such a suspension

for conduct entirely unrelated to bar licensure.

          Should the attachment be released? Answering this question involves examining, as an

initial matter, whether it is responsive to Plaintiff’s request and, next, if FOIA exemptions apply

to all or parts of the document.

          A. Responsive Records

          The threshold inquiry is whether the draft document attached to the Casey Letter is even

responsive to Parker’s FOIA request. In other words, the statute only compels disclosure “once

an agency identifies a record it deems responsive to a FOIA request.” Am. Immigration Lawyers

Ass’n v. Exec. Office for Immigration Review, 830 F.3d 667, 677 (D.C. Cir. 2016). Not so with

non-responsive materials. While Plaintiff asked for all records regarding Bridges Jackson’s bar-

lapse discipline, the attachment, on its face, discusses only another unrelated disciplinary

incident. OPR therefore contends that it is not responsive. See Def. Reply at 6-7.

          Considered alone, it is unclear whether the document is encompassed by Parker’s FOIA

request. Yet the Court need not decide that issue, as it considers the draft letter’s possible

responsiveness as an attachment to an already-produced responsive record — namely, the Casey

Letter.

          It is not disputed that the Casey Letter is, in fact, responsive. Although it does not

comment on Bridges Jackson’s license to practice law or lack thereof, OPR found it in the “file

pertaining to former AUSA Bridges Jackson’s bar lapse.” Fifth Barnett Decl., ¶¶ 3, 5-6.

Presumably, as a result, the Government agrees that the Casey Letter is “a responsive

document.” Def. Reply at 7.




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       While this does not push Parker past the finish line, he is now off the starting block.

Significantly, the D.C. Circuit recently held in AILA that “if the government identifies a record

as responsive to a FOIA request,” it cannot “redact particular information within the responsive

record on the basis that the information is non-responsive.” 830 F.3d at 677. In other words, a

single record cannot be split into responsive and non-responsive bits. If the Casey Letter and its

attachment are one record — i.e., “a unit” — then FOIA requires disclosure of both together. Id.

       The key is understanding what it means to be a single “record.” While FOIA “provides

no definition of the term ‘record,’” agencies “in effect define a ‘record’ when they undertake the

process of identifying records.” Id. at 678 (emphasis added); see McGehee v. CIA, 697 F.2d

1095, 1108 (D.C. Cir. 1983). In an expansive bureaucracy, documents and information will not

always fall into discrete sets. When collecting these materials together, an agency might

combine pages into one document (e.g., a set of handwritten notes) or split others into multiple

parts (e.g., a compendium of memoranda). “[T]he dispositive point is that, once an agency itself

identifies a particular document or collection of material — such as a chain of emails — as a

responsive ‘record,’” then it must produce the whole, absent other statutory exemptions that

allow redactions. AILA, 830 F.3d at 678. Courts may then review that determination.

       DOJ also provides helpful criteria “for agencies to take into account when determining

whether it is appropriate to divide . . . a document into discrete ‘records.’” Id. (citing DOJ, OIP

Guidance: Determining the Scope of a FOIA Request, FOIA Update, Vol. XVI, No. 3 (1995),

https://www.justice.gov/oip/blog/foia-update-oip-guidance-determining-scope-foia-request); see

Shapiro v. CIA, No. 14-19, 2017 WL 1216505, at *11 (D.D.C. Mar. 31, 2017). As Judge

Christopher R. Cooper of this district ably summarized, those considerations include “the

requester’s intent, maintaining the integrity of the released documents, the scope of the request,




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the agency’s own knowledge regarding storage and maintenance of documents, efficiency, cost,

resource allocation, and maintaining the public’s trust in transparency.” Shapiro, 2017 WL

1216505, at *11.

       The Court need only discuss a few of these factors, as they largely favor treating the

Casey Letter and its attached draft letter as one indivisible whole. The Casey Letter, in fact,

itself touches on the subject matter of the attachment and refers the recipient to examine its

contents. See Casey Letter at 1 (pointing reader to “reasons set forth in the enclosed draft

letter”); see also AILA, 830 F.3d at 678 (asking how “an agency itself identifies a particular

document or collection of material”). While OPR notes that the enclosure was not initially found

in the same location as the cover letter, that fact is not dispositive. See Def. Reply at 7; Fifth

Barnett Decl., ¶¶ 3, 5-6. For one, in the file where it was found, the attachment and another copy

of the Casey Letter were co-located. See Fifth Barnett Decl., ¶ 6. Lay requesters also are hardly

privy to OPR’s numerous document-management systems, and there is no indication that Parker

asked for the contents of some specific file and not others. See ECF No. 14-1 (Second

Declaration of Ginae Barnett), ¶ 6; Third Barnett Decl., ¶¶ 4-7; see also Shapiro, 2017 WL

1216505, at *11. From the Government’s description, moreover, the attachment appears to have

been easily retrievable after a search of its records systems. See Fifth Barnett Decl., ¶ 6.

       Although there is no per se rule that letters and their attachments must be treated as one,

the Court finds that these two pieces belong together. See Hall v. CIA, 881 F. Supp. 2d 38, 62

(D.D.C. 2012) (requiring production where agency “maintained and controlled the documents

that reference the other documents, many of them attachments”). FOIA therefore requires

complete disclosure of the whole record unless information in the Casey Letter’s attached draft

document is covered by exemptions. The Court turns to that question next.




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       B. Reasonably Segregable, Non-Exempt Material

       The agency must “disclose all reasonably segregable, nonexempt portions of the

requested record.” Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 58 (D.C. Cir.

2003). OPR contends that Exemptions 5, 6, and 7(C) apply, though it mentions nothing about

potential segregability in its briefing. See Def. Reply at 7-12. This Court nonetheless has an

“affirmative duty to consider the segregability issue sua sponte.” Elliott v. USDA, 596 F.3d 842,

851 (D.C. Cir. 2010) (quoting Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007)). It does so

here in the context of the applicable exemptions.

       Before the Court dives in, a further breakdown of the documents at issue may help the

reader. First off, in Casey’s cover letter, she discusses a recent “problem with an Assistant

United States Attorney in my office” unconnected with bar licensure and mentions that she

“proposed a five day suspension for reasons set forth in the enclosed draft letter” to the AUSA.

See Casey Letter at 1. That appended draft letter can then be broken up into three segments. The

first introductory paragraph proposes that five-day suspension, without mentioning the specific

reason, and lists the federal regulations and public agency guidance that govern all such

suspensions. The next six paragraphs, spanning pages one and two, discuss a particular incident

and the justification for that proposed disciplinary action. The remainder of the attachment, from

the last full paragraph on page two onward, details DOJ’s suspension procedures as set forth in

the aforementioned published regulations and public guidance. See, e.g., 5 C.F.R. §§ 752.201-

.203. That last section makes no mention of the specifics of Bridges Jackson’s alleged

misconduct.

       In now applying the invoked FOIA exemptions, all point the same way — namely, that

OPR should release both the introductory paragraph and the terminal part detailing DOJ




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procedures, but may redact the reasons behind the proposed suspension. The Court discusses

Exemption 5 and then Exemptions 6 and 7(C) together.

         First, Exemption 5 permits an agency to withhold “inter-agency or intra-agency

memorandums or letters that would not be available by law to a party other than an agency in

litigation with the agency,” including records protected by the “deliberative process privilege.” 5

U.S.C. § 552(b)(5). That privilege covers “documents reflecting advisory opinions,

recommendations and deliberations comprising part of a process by which governmental

decisions and policies are formulated.” Dep’t of Interior v. Klamath Water Users Protective

Ass’n, 532 U.S. 1, 8 (2001) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975));

accord In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). “The ‘key question’ in identifying

‘deliberative’ material is whether disclosure of the information would ‘discourage candid

discussion within the agency.’” Access Reports v. DOJ, 926 F.2d 1192, 1195 (D.C. Cir. 1991)

(quoting Dudman Comms. Corp. v. Dep’t of Air Force, 815 F.2d 1565, 1567-68 (D.C. Cir.

1987)); see Nat’l Sec. Archive v. CIA, 752 F.3d 460, 462 (D.C. Cir. 2014) (explaining purpose

“to encourage the candid and frank exchange of ideas in the agency’s decisionmaking process”).

         As with other exemptions, “if the government can segregate and disclose non-privileged

factual information within a document, it must.” Loving v. Dep’t of Defense, 550 F.3d 32, 38

(D.C. Cir. 2008). “[T]he privilege applies only to the ‘opinion’ or ‘recommendatory’ portion of

the report, not to factual information which is contained in the document.” Coastal States Gas

Corp. v. Dep’t of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980). The agency, moreover, may

waive the privilege by placing “a specific fact . . . in the public domain.” Public Citizen v. Dep’t

of State, 11 F.3d 198, 201 (D.C. Cir. 1993); see Davis v. DOJ, 968 F.2d 1276, 1279 (D.C. Cir.

1992).




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       These principles lead to partial disclosure here. To begin, the reasons for the five-day-

suspension “recommendation[]” fall within the heartland of the privilege. See Klamath, 532

U.S. at 8 (quoting Sears, 421 U.S. at 150). Some assurance against later disclosure is necessary

if government employees are expected to have “candid and frank” discussions of such sensitive

topics as internal discipline. See Nat’l Sec. Archive, 752 F.3d at 462. The rest of the attachment,

however, is not privileged. Its introductory paragraph reveals no content other than what the

cover letter itself publicly discloses — i.e., that the U.S. Attorney planned to propose a five-day

suspension. That paragraph then cites federal regulations and agency guidance on suspension

procedures, and the later paragraphs describe those rules. See, e.g., 5 C.F.R. §§ 752.201-.203.

The Court would be hard pressed to conclude that this disclosure of information about DOJ’s

disciplinary procedures that are, in substance, already public knowledge would in any way stifle

agency deliberations. See Coastal States, 617 F.2d at 868 (rejecting privilege as to “simply

straightforward explanations of agency regulations in specific factual situations”). Because those

portions are written in neutral language such that they are “severable without compromising the

[privileged] remainder of the document[],” EPA v. Mink, 410 U.S. 73, 91 (1973), OPR must

disclose these segments.

       Exemptions 6 and 7(C) cast no wider a net. These two rules “seek to protect the privacy

of individuals identified in certain agency records.” ACLU v. DOJ, 655 F.3d 1, 6 (D.C. Cir.

2011). Exemption 6 protects “personnel and medical files and similar files” where disclosure

“would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6).

Exemption 7(C) permits a withholding of “records or information compiled for law enforcement

purposes” where disclosure “could reasonably be expected to constitute an unwarranted invasion

of personal privacy.” Id. § 552(b)(7). The latter exemption “establishes a lower bar for




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withholding material.” ACLU, 655 F.3d at 6. As the Court held last time with similar

documents regarding internal investigations of AUSA misconduct, this attachment constitutes a

law-enforcement record such that the more liberal Exemption 7(C) applies. Parker, 214 F. Supp.

3d at 86. The Court thus need not consider Exemption 6. Id.

       As with the deliberative-process privilege, the Court must ask if portions that do not

implicate privacy can be segregated and released. See Shapiro v. DOJ, No. 13-555, 2017 WL

908179, at *2 (D.D.C. Mar. 6, 2017). The agency likewise may not rely on Exemption 6 or 7(C)

to withhold “information that has been ‘officially acknowledged’ or is in the ‘public domain.’”

Bartko v. DOJ, 62 F. Supp. 3d 134, 142 (D.D.C. 2014) (quoting Davis, 968 F.2d at 1279).

       The result, then, is very much the same. First off, these privacy exemptions may protect

the descriptions of Bridges Jackson’s alleged wrongdoing and the reasons for why that conduct

warranted discipline. As the Court previously held, OPR may withhold the details of “internal

disciplinary actions considered or taken.” Parker, 214 F. Supp. 3d at 87-89. While those middle

paragraphs may be redacted, the rest must be released. The attachment’s introductory paragraph

includes “specific information in the public domain that appears to duplicate that being

withheld” — to wit, the proposal of a five-day suspension. Wolf v. CIA, 473 F.3d 370, 378

(D.C. Cir. 2007) (quoting Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)); see

Casey Letter at 1 (“I proposed a five day suspension for reasons set forth in the enclosed draft

letter.”). The remainder of the first paragraph and the final section of the attachment, again,

reveal nothing more than neutral summaries of applicable agency regulations that contain only

public information, not private facts about Bridges Jackson.




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       In sum, of the full Casey Letter attachment, Defendant must release the first paragraph

and the portion beginning with the last full paragraph of page two until the end of the document.

The rest it may elect to redact.

III.   Conclusion

       For these reasons, the Court will grant in part and deny in part OPR’s Motion for

Summary Judgment and grant in part and deny in part Parker’s Cross-Motion for Summary

Judgment. The Court will also order Defendant to release portions of the Casey Letter

attachment to Plaintiff within fourteen days. A separate Order so stating will issue this day.

                                                             /s/ James E. Boasberg
                                                             JAMES E. BOASBERG
                                                             United States District Judge

Date: August 16, 2017




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