Judicial Watch Argues Attorney Hours Not Exempt From Disclosure

In FOIA litigation, as in all litigation, summary judgment is appropriate only when the pleadings and declarations demonstrate 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, 248 (1986); Fed. R. Civ. P. 56(c). In FOIA cases, agency decisions to "withhold or disclose information under FOIA are reviewed de novo." Judicial Watch, Inc. v. U.S. Postal Service, 297 F. Supp. 2d 252, 256 (D.D.C. 2004). In reviewing a motion for summary judgment under FOIA, the court must view the facts in the light most favorable to the requester. Weisberg v. U.S. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984).

For an agency to prevail on a claim of exemption, it may rely on declarations if they "describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). In addition, an agency must demonstrate that, even where particular exemptions properly apply, all non-exempt material has been segregated and disclosed. Sussman v. U.S. Marshals Service, 494 F.3d 1106, 1116 (D.C. Cir. 2007). A segregability determination is absolutely essential to any FOIA decision. See Summers v. U.S. Department of Justice, 140 F.3d 1077, 1081 (D.C. Cir. 1998).

A. The attorney work product doctrine does not apply to time records.

To properly withhold the time records pursuant to the attorney work product doctrine, Defendant must demonstrate that the records "were prepared for the purpose of assisting an attorney in preparing for litigation, and not for some other reason." Alexander v. Federal Bureau of Investigation, 192 F.R.D. 42, 46 (D.D.C. 2000) (citing Athridge v. Aetna Casualty and Surety Company, 184 F.R.D. 200, 205 (D.D.C. 1998)); see also EEOC v. Lutheran Social Services, 186F.3d 959, 968 (D.C. Cir. 1999); Judicial Watch, Inc. v. United States Department of Homeland Sec., 926 F. Supp. 2d 121, 138 (D.D.C. 2013). Stated another way:

Clearly the time records at issue here are not protected by the attorney work product doctrine. According to Mr. Hermilla, the records "were generated in connection with an investigation." Hermilla Decl. at ¶ 15. They were not created "for the purpose of assisting an attorney in preparing for litigation." Alexander, 192 F.R.D. at 46. In addition, as noted above, the records were created to assist senior management in "track[ing] case-related activities of the Division's legal staff[,]" "oversee[ing] the work of the Division[,]" and "report[ing] case data at all levels of the Department to provide for accountability and analyze the Division's performance." Hermilla Decl. at ¶ 8. Regardless of whether the criminal investigation may ultimately lead to criminal prosecutions (id. at ¶ 15), the time records at issue would still have been created. The attorney work product doctrine simply does not apply to the records responsive to Plaintiff's FOIA request.

B. The law enforcement exemption does not apply to time records.

Exemption 7 protects from disclosure "records or information compiled for law enforcement purposes, but only to the extent that the production of such records or information" would cause one of six enumerated harms. 5 U.S.C. § 552(b)(7)(A)-(F). Defendant therefore must first demonstrate that the time records were "compiled for law enforcement purposes." Pratt v. Webster, 673 F.2d 408, 416 (D.C. Cir. 1982); see also Shapiro v. U.S. Department of Justice, 2014 U.S. Dist. LEXIS 31774, *45 (D.D.C. Mar. 12, 2014); Sinsheimer v. U.S. Department of Homeland Security, 437 F. Supp. 2d 50, 55 (D.D.C. 2006). Specifically, Defendant must describe "how and under what circumstances the [time records] were compiled." Jefferson v. U.S. Department of Justice, 284 F.3d 172, 176-77, (D.C. Cir. 2002). In this instance, Defendant fails to provide any evidence whatsoever that the time records were compiled for law enforcement purposes. In fact, the only evidence provided by Defendant suggests the opposite.

Mr. Hermilla testifies, "The records being withheld under Exemption 7(A) were generated in connection with an ongoing criminal investigation into alleged misconduct by IRS officials." Hermilla Decl. at ¶ 12 (emphasis added). In other words, the records were not created for law enforcement purposes. Instead, they were created to assist senior management in "track[ing] case-related activities of the Division's legal staff[,]" "oversee[ing] the work of the Division[,]" and "report[ing] case data at all levels of the Department to provide for accountability and analyze the Division's performance." Hermilla Decl. at ¶ 8.

In Maydak v. U.S. Department of Justice, the plaintiff sought records located in the Inmate Central Records System, which was "the system of records routinely utilized to collect and maintain information concerning the day-to-day activities and events occurring during the confinement of an inmate." 254 F. Supp. 2d 23, 38 (D.D.C. 2003). The defendant asserted that the records were protected by Exemption 7 because "'Inmates' Central Files are compiled for law enforcement purposes.'" Id. The Court concluded that the defendant's conclusory statement did not "satisfy the threshold law enforcement requirement." Id.

The evidence submitted by Defendant in this case does not even rise to the level of evidence submitted in Maydak. Defendant's lone declarant fails to even parrot the language of the exemption subsection. Simply put, there is no evidence that the time records "were compiled for law enforcement purposes." 5 U.S.C. § 552(b)(7). The law enforcement exemption does not apply to the records responsive to Plaintiff's FOIA request.

Even if the records were compiled for law enforcement purposes and not for managerial oversight reasons, Defendant fails to provide any evidence that the release of the time records "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). Plaintiff solely seeks records detailing the number of hours that Ms. Bosserman spent on the criminal investigation into alleged IRS misconduct. It does not seek "the type of activity she performed[,]" or "notes describing how time was spent[,]" or "accounts of the tasks as she performed them." Hermilla Decl. at ¶ 10. Yet Mr. Hermilla does not even testify as to how the release of the number of hours that Ms. Bosserman spent on the investigation could reasonably be expected to interfere with the investigation. In addition, if the release of information such as "the type of activity she performed[,]" "notes describing how time was spent[,]" and/or "accounts of the tasks as she performed them" (Hermilla Decl. at ¶ 10) could reasonably be expected to interfere with the investigation, Defendant should redact such information as privileged or even as non-responsive.

C. The privacy exemptions do not apply to time records.

As demonstrated above, Defendant fails to provide any evidence whatsoever that the time records "were compiled for law enforcement purposes." Nevertheless, to the extent that the Court finds that the records fall within the purview of Exemption 7, Defendant fails to demonstrate that the release of the records "could reasonably be expected to constitute an unwarranted invasion of personal privacy." U.S.C. § 552(b)(7)(C). Because the analyses under Exemptions 6 and 7(C) are very similar, Defendant considers them together. Therefore, Plaintiff also considers them together. For clarity, Exemptions 6 and 7, collectively, will be referred to as "privacy exemptions." Under the privacy exemptions, an agency may only withhold responsive records if an individual's privacy interest outweighs the public's interest in disclosure. Nation Magazine v. U.S. Customs Service, 71 F.3d 885, 893 (D.C. Cir. 1995).

Mr. Hermilla testifies that the release of the time records

In addition, to the extent that Ms. Bosserman has a privacy interest in the number of hours she spent on the criminal investigation into alleged IRS misconduct, the public interest outweighs her privacy interest. Nation Magazine, 71 F.3d at 893. As mentioned above, according to the Committee on Oversight and Government Reform of the U.S. House of Representatives, Ms. Bosserman "is leading the [Department of Justice] investigation." See January 8, 2014 Letter from Congressman Issa to Attorney General Holder. If this is in fact true, the public has an obvious interest in the number of hours Ms. Bosserman has expended on the criminal investigation into alleged IRS misconduct. Such information would shed light on Defendant's handling of the investigation. For all of these reasons, the privacy exemptions do not apply to the time records at issue in this case.²

D. Not all of the information contained in time records are protected by the deliberative process privilege.

The deliberative process privilege protects "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." U.S. Department of Interior v. Klamath Water Users Protective Association, 532 U.S. 1, 8 (2001). Its purpose is to "protect the executive's deliberative processes -- not to protect specific materials." Dudman Communications Corporation v. Department of Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987). For it properly to withhold the time records under the deliberative process privilege, Defendant must demonstrate that the records are "both 'predecisional' and 'deliberative.'" Public Citizen, Inc. v. Office of Management and Budget, 598 F.3d 865, 874 (D.C. Cir. 2010) (quoting Coastal States Gas Corporation v. U.S. Department of Energy, 617 F.2d 854, 866, (D.C. Cir. 1980)). A document is deliberative if it "reflect[s] the personal opinions of the writer rather than the policy of the agency." Coastal States Gas, 617 F.2d at 866. It is Defendant's burden to demonstrate the role the time records played in the decisionmaking process. Whitaker v. Central Intelligence Agency, 2014 U.S. Dist. LEXIS 30778, **31-32 (D.D.C. Mar. 10, 2014); see also Vaughn v. Rosen, 523 F.2d 1136, 1143-1144 (D.C. Cir. 1975) (To be deliberative, the record must be "a direct part of the deliberative process" in that it "'makes recommendations or expresses opinions on legal or policy matters." (emphasis added)).

Defendant fails to demonstrate that the records detailing the number of hours spent by Ms. Bosserman are in any way related to the decisionmaking process related to the criminal investigation into alleged IRS misconduct. Defendant also cannot demonstrate that the time records played any role in the decisionmaking process. The records were created solely to assist senior management in "track[ing] case-related activities of the Division's legal staff[,]" "oversee[ing] the work of the Division[,]" and "report[ing] case data at all levels of the Department to provide for accountability and analyze the Division's performance." Hermilla Decl. at ¶ 8. To the extent that the time records contain information such as "the type of activity she performed[,]" "notes describing how time was spent[,]" and/or "accounts of the tasks as she performed them" (Hermilla Decl. at ¶ 10), it would be entirely appropriate for Defendant to redact such information as privileged or even as non-responsive. Defendant however did not redact such information; it withheld the records in their entirety. Because the time records must be segregated and non-exempt information must be disclosed (Sussman, 494 F.3d at 1116), Defendant's argument that the time records are being properly withheld in their entirety pursuant to the deliberative process privilege must fail.

Dated: January 14, 2015

² As with the other claims, to the extent that the Court finds that Ms. Bosserman has some privacy interest in information such as "the type of activity she performed[,]" "notes describing how time was spent[,]" and/or "accounts of the tasks as she performed them" (Hermilla Decl. at 10), Defendant can redact such information as privileged or even as non-responsive.

2. Undisputed.

3. Disputed. According to the Committee on Oversight and Government Reform of the U.S. House of Representatives, Ms. Bosserman "is leading the [Department of Justice] investigation." See January 8, 2014 Letter from Congressman Issa to Attorney General Holder.¹

4. Undisputed.

5. Undisputed.

6. Plaintiff lacks knowledge to confirm or deny this paragraph. See Judicial Watch, Inc. v. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution of knowledge" as between a FOIA requester and an agency in FOIA cases).

7. Plaintiff lacks knowledge to confirm or deny this paragraph. See Judicial Watch, Inc. v. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution of knowledge" as between a FOIA requester and an agency in FOIA cases).

8. It is undisputed that Defendant submitted the Declaration of Nelson Hermilla. The declaration speaks for itself. Plaintiff disputes Defendant's characterizations of the declaration.

Dated: January 14, 2015