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DOJ Argues Attorney Hours Exempt From FOIA Disclosure

NOV. 3, 2014

Judicial Watch Inc. v. U.S. Dept. of Justice

DATED NOV. 3, 2014
DOCUMENT ATTRIBUTES
  • Case Name
    JUDICIAL WATCH, INC., 425 THIRD STREET, S.W., SUITE 800 WASHINGTON, DC 20024 Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, 950 PENNSYLVANIA AVENUE, N.W. WASHINGTON, DC 20530 Defendant.
  • Court
    United States District Court for the District of Columbia
  • Docket
    No. 1:14-cv-01024
  • Cross-Reference
    Related to Judicial Watch Inc. v. U.S. Dept. of Justice, No.

    1:14-cv-01024 (D.D.C. 2015) 2015 TNT 18-12: Other Court Documents.
  • Subject Area/Tax Topics
  • Jurisdictions
  • Language
    English
  • Tax Analysts Document Number
    Doc 2015-1972
  • Tax Analysts Electronic Citation
    2015 TNT 18-39

Judicial Watch Inc. v. U.S. Dept. of Justice

 

UNITED STATES DISTRICT COURT

 

FOR THE DISTRICT OF COLUMBIA

 

 

MOTION FOR SUMMARY JUDGMENT

 

 

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Defendant, the United States Department of Justice, by and through undersigned counsel, hereby moves the Court for summary judgment on Count I of the Complaint. Summary judgment is appropriate because Defendant correctly determined that the requested records are exempt from disclosure. The grounds for this motion are set forth at length in the accompanying memorandum of law.

November 3, 2014

Respectfully Submitted,

 

 

Joyce R. Branda

 

Acting Assistant Attorney General

 

 

Elizabeth J. Shapiro

 

Deputy Branch Director,

 

Federal Programs Branch

 

 

Sam M. Singer

 

D.C. Bar. No. 1014022

 

Trial Attorney,

 

Federal Programs Branch

 

Civil Division

 

United States Department of Justice

 

20 Massachusetts Ave., NW,

 

Room 6138

 

Washington, DC 20001

 

Tel: (202) 616-8014 | Fax: (202) 616-8470

 

samuel.m.singer@usdoj.gov

 

 

Counsel for Defendant

 

MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION

 

FOR SUMMARY JUDGMENT

 

 

                           TABLE OF CONTENTS

 

 

 INTRODUCTION

 

 

 BACKGROUND

 

 

 I.   Criminal Investigation into Alleged IRS Misconduct

 

 

 II.  Judicial Watch's FOIA Request and the Department of Justice's

 

      Response

 

 

 ARGUMENT

 

 

 I.   Legal Standards for Summary Judgment in FOIA Cases

 

 

 II.  The DOJ Properly Withheld Records Pursuant to FOIA Exemption 5

 

 

      A. The Time Records Are Protected by The Work Product Privilege

 

 

      B. The Time Records Are Protected by The Deliberative Process

 

         Privilege

 

 

 III. The DOJ Properly Withheld Records Pursuant to FOIA Exemption

 

      7(A)

 

 

 IV.  The DOJ Properly Withheld Records Pursuant to FOIA Exemptions 6

 

      & 7(C)

 

 

 CONCLUSION

 

 

                            TABLE OF AUTHORITIES

 

 

 CASES

 

 

 Barnard v. DHS,,

 

 598 F. Supp. 2d 1 (D.D.C. 2009)

 

 

 Berger v. I.R.S.,

 

 288 F. App'x 829 (3d Cir. 2008)

 

 

 Bibles v. Or. Natural Desert Ass'n,

 

 519 U.S. 355 (1997)

 

 

 Boyd v. Criminal Division of the U.S. Department of Justice,

 

 475 F.3d 381 (D.C. Cir. 2007)

 

 

 Chemical Mfrs. Ass'n v. Consumer Prod. Safety Comm'n,

 

 600 F. Supp. 114 (D.D.C. 1984)

 

 

 Coastal States Gas Corp. v. Dep't of Energy,

 

 617 F.2d 854 (D.C. Cir. 1980)

 

 

 Ctr. for Nat'l Sec. Studies v. DOJ,

 

 331 F.3d 918 (D.C. Cir. 2003)

 

 

 Darui v. U.S. Department of State,

 

 798 F. Supp. 2d 32 (D.D.C. 2011)

 

 

 Edmonds v. FBI,

 

 272 F. Supp. 35 (D.D.C. 2003)

 

 

 Envt'l Prot. Servs. v. EPA,

 

 364 F. Supp. 2d 575 (N.D. W. Va. 2005)

 

 

 Goland v. CIA,

 

 607 F.2d 339 (D.C. Cir. 1978)

 

 

 Hickman v. Taylor,

 

 329 U.S. 495 (1947)

 

 

 In re Sealed Case,

 

 121 F.3d 729 (D.C. Cir. 1997)

 

 

 Indian Law Res. Ctr. v. Dep't of Interior,

 

 477 F. Supp. 144 (D.D.C. 1979)

 

 

 J.P. Stevens & Co. v. Perry,

 

 710 F.2d 136 (4th Cir. 1983)

 

 

 Judicial Watch v. Dep't of Army,

 

 402 F. Supp. 2d 241 (D.D.C. 2005)

 

 

 Judicial Watch v. Rossotti,

 

 285 F. Supp. 2d 17 (D.D.C. 2003)

 

 

 Judicial Watch, Inc. v. U.S. Dep't of Justice,

 

 432 F.3d at 366 (D.C. Cir. 2005)

 

 

 Kidder v. F.B.I.,

 

 517 F. Supp. 2d 17 (D.D.C. 2007)

 

 

 Lesar v. U.S. Dep't of Justice,

 

 636 F.2d 472 (D.C. Cir. 1980)

 

 

 Long v. U.S. Dep't of Justice,

 

 703 F. Supp. 2d 84 (2010)

 

 

 Manna v. U.S. Dep't of Justice,

 

 51 F.3d 1158 (3d Cir. 1995)

 

 

 Moore v. Bush,

 

 601 F. Supp. 2d 6 (D.D.C. 2009)

 

 

 National Archives & Records Administration v. Favish,

 

 541 U.S. 157 (2004)

 

 

 Nat'l Labor Relations Bd. v. Sears, Roebuck & Co.,

 

 421 U.S. 132 (1975)

 

 

 Piper v. United States Department of Justice,

 

 294 F. Supp. 2d 16 (D.D.C. 2003)

 

 

 Russell v. Dep't of Air Force,

 

 682 F.2d 1045 (D.C. Cir. 1982)

 

 

 Safecard Servs., Inc. v. Securities and Exchange Comm'n,

 

 926 F.2d 1197 (D.C. Cir. 1991)

 

 

 Schiller v. Nat'l Labor Relations Bd.,

 

 964 F.2d 1205 (D.C. Cir. 1992)

 

 

 Solar Sources, Inc. v. United States,

 

 142 F.3d 1033 (7th Cir. 1998)

 

 

 Students Against Genocide v. Department of State,

 

 257 F.3d 828 (D.C. Cir. 2001)

 

 

 Suzhou Yuanda Enter. Co. v. Customs & Border Protection,

 

 404 F. Supp. 2d 9 (D.D.C. 2005)

 

 

 Tax Analysts v. IRS,

 

 117 F.3d 607 (D.C. Cir. 1997)

 

 

 United States Department of Justice v. Reporters Comm. for

 

 Freedom of the Press,

 

 489 U.S. 749 (1989)

 

 

 Washington Bancorporation v. Said,

 

 CIV. A. 88-3111 (RCL, 1989 WL 946533 (D.D.C. May 10, 1989)

 

 

 Winterstein v. U.S. Dep't of Justice,

 

 89 F. Supp. 2d 79 (D.D.C. 2000)

 

 

 Wolfe v. Dep't of Health and Human Services,

 

 839 F.2d 768 (D.C. Cir. 1988)

 

 

 STATUTES

 

 

 5 U.S.C. § 552

 

 

 5 U.S.C. § 552(b)(5)

 

 

 5 U.S.C. § 552(b)(6)

 

 

 5 U.S.C. § 552(b)(7)(A)

 

 

 5 U.S.C. § 552(b)(7)(C)

 

 

 FEDERAL RULES OF CIVIL PROCEDURE

 

 

 Fed. R. Civ. P. 26(b)(3)

 

 

 Fed. R. Civ. P. Rule 56

 

 

 Fed. R. Civ. P. 56(a)

 

 

 MISCELLANEOUS

 

 

 Inappropriate Criteria Were used to Identify Tax-Exempt

 

 Applications for Review, Reference Number 2013-10-053, May 14,

 

 2013

 

INTRODUCTION

 

 

In this action under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), plaintiff Judicial Watch, Inc. seeks public disclosure of records detailing the number of hours a Department of Justice ("DOJ") attorney has expended on an active criminal investigation. The DOJ correctly determined that the requested time records are exempt from disclosure under FOIA exemptions protecting privileged work product, privacy, and the integrity and effectiveness of law enforcement investigations. As numerous courts have held, FOIA cannot be used to compel the government to reveal a roadmap of its investigative plans. For these and other reasons, summary judgment should be granted in favor of the Department of Justice.

 

BACKGROUND

 

 

I. Criminal Investigation into Alleged IRS Misconduct

 

 

In an audit released in May 2013, the Treasury Inspector General for Tax Administration found that the Internal Revenue Service ("IRS") used inappropriate criteria in reviewing certain applicants for tax-exempt status.1 In response to the audit, the DOJ launched a criminal investigation to determine if IRS officials broke any laws in connection with their treatment of groups seeking tax-exempt status. See Declaration of Nelson Hermilla, dated November 3, 2014 ("Hermilla Decl.") ¶ 3. The investigation, which is ongoing, is being conducted by career attorneys in the Criminal Division's Public Integrity Section and the Civil Rights Division's Criminal Section. This FOIA action stems from questions surrounding the involvement of one of those career attorneys -- Barbara Bosserman, a senior legal counsel in the Civil Rights Division. Although the DOJ has confirmed Ms. Bosserman's involvement in the investigation, in keeping with longstanding policy, it has not provided specifics about her role or duties, and has otherwise refused to comment on the status of the investigation or any findings to date. Id. ¶

4.

 

II. Judicial Watch's FOIA Request and the Department of

 

Justice's Response

 

 

On February 25, 2014, Judicial Watch, Inc. ("Judicial Watch") sent a FOIA request to the Justice Management Division, a component of the DOJ, seeking access to:

 

"All Justice Department records from the Interactive Case Management System detailing the number of hours DOJ Attorney Barbara Bosserman expended on the investigation of the Internal Revenue Service targeting conservative organizations seeking tax-exempt status in the 2010 and 2012 election cycles."

 

Judicial Watch, Inc. Complaint, June 17, 2014, ECF No. 1 ("Compl.") ¶ 5. The request was forwarded to the Civil Rights Division, which acknowledged receipt and searched the Interactive Case Management System ("ICM") for responsive records.2 Hermilla Decl. ¶ 5.

The ICM system is an electronic database that stores information about work performed on matters handled by the Civil Rights Division's legal staff. Id. ¶ 8. Division attorneys use the ICM system to track and memorialize the time they spend on their cases and case-related tasks. ICM time records are used by Division management as a resource in overseeing and reporting on the work of the Division. Id. The information in the ICM system is divided into various fields that display the case name, the DOJ file number, the date of activity, the type of work, the number of hours expended, and the description of the activity. Id. ¶ 9.

Pursuant to Judicial Watch's FOIA request, the Civil Rights Division searched the ICM system for records detailing the hours expended by Ms. Bosserman on the IRS targeting investigation. Id. ¶ 10. The responsive material consists of electronic records detailing Ms. Bosserman's work on the IRS investigation to date. Id. In addition to logs detailing which days Ms. Bosserman worked on the investigation and the number of hours expended each day, the ICM time records include activity codes and, in some cases, brief descriptions of how Ms. Bosserman spent her time at work. Id. Such accounts show Ms. Bosserman attending witness interviews, briefing colleagues and supervisors, and visiting various locations. Id.

The Civil Rights Division denied access to the requested records on the basis of FOIA Exemptions 6 and 7(C). Id. ¶ 7. The decision to withhold is supported by a declaration submitted by Nelson Hermilla, Chief of the Freedom of Information/Privacy Act Branch of the Civil Rights Division.3

 

ARGUMENT

 

 

I. Legal Standards for Summary Judgment in FOIA Cases

 

 

"FOIA cases are typically and appropriately decided on motions for summary judgment." Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009). As in any other case, summary judgment is warranted in a FOIA case "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. Civ. P. 56(a); see Darui v. U.S. Dep't of State, 798 F. Supp. 2d 32, 37 (D.D.C. 2011). An agency in a FOIA case is entitled to summary judgment "if no material facts are in dispute and if it demonstrates 'that each document that falls within the class requested either has been produced . . . or is wholly exempt from the Act's inspection requirements." Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978).

The government may satisfy its burden of justifying non-disclosure of records by submitting an agency declaration describing the material withheld and the reasons for non-disclosure. See U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 753 (1989). Such declarations are accorded a presumption of good faith, Safecard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991), as well as a presumption of expertise, Piper v. U.S. Dep't of Justice, 294 F. Supp. 2d 16, 20 (D.D.C. 2003).

 

II. The DOJ Properly Withheld Records Pursuant to FOIA Exemption 5

 

 

The Civil Rights Division withheld time records from the ICM system that were rightly deemed to be privileged under Exemption 5. Exemption 5 allows the agency to withhold "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). The exemption ensures that members of the public cannot "obtain through FOIA what they could not ordinarily obtain through discovery undertaken in a lawsuit against the agency." Schiller v. NLRB, 964 F.2d 1205, 1208 (D.C. Cir. 1992) (citation omitted). Thus, Exemption 5 "exempt[s] those documents . . . normally privileged in the civil discovery context." Id. (citations omitted).

Because Judicial Watch's request relates to an ongoing criminal investigation, it should come as no surprise that the responsive record qualifies as attorney work product. Moreover, because the same records were created as part of the process of determining whether to bring criminal charges in connection with the IRS investigation, the records are also protected by the overlapping deliberative process privilege.

A. The Time Records Are Protected by The Work Product Privilege

The work product privilege protects documents prepared by attorneys or others in contemplation of litigation. See Fed. R. Civ. P. 26(b)(3); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154 (1975). The privilege "is reflected in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways" provided they were prepared with an eye toward litigation. Hickman v. Taylor, 329 U.S. 495, 511 (1947). As the Supreme Court has recognized, "it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel." Id. at 510; see also Coastal States Gas Corp. v. U.S. Dep't of Energy, 617 F.2d 854, 864 (D.C. Cir. 1980) ("It is believed that the integrity of our system would suffer if adversaries were entitled to probe each other's thoughts and plans concerning the case.").

The attorney work doctrine protects records generated in connection with law enforcement investigations when the investigation is "based upon a suspicion of specific wrongdoing and represent[s] an attempt to garner evidence and build a case against the suspected wrongdoer." Safecard Servs., 926 F.2d at 1202; see also Winterstein v. U.S. Dep't of Justice, 89 F. Supp. 2d 79, 81 (D.D.C. 2000) (work product doctrine protected prosecution memorandum "prepared for the purpose of pursuing a specific claim-namely, the contemplated prosecution of" a specific individual). Moreover, the doctrine "does not distinguish between factual and deliberative material[s]." Judicial Watch, Inc. v. U.S. Dep't of Justice, 432 F.3d 366, 371 (D.C. Cir. 2005). "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 [E]xemption 5." Id. (quoting Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C. Cir. 1997)). Thus, if any part of a document constitutes attorney work product, the document may be withheld in full, without the need for segregation. Id.

Time records are protected by the work product doctrine. Washington Bancorporation v. Said, CIV. A. 88-3111 RCL, 1989 WL 946533, at *5 (D.D.C. May 10, 1989); Indian Law Res. Ctr. v. Dep't of Interior, 477 F. Supp. 144, 148 (D.D.C. 1979); Long v. US Dep't of Justice, 703 F.Supp. 2d 84, 101 (N.D.N.Y. 2010). In Long, the plaintiff sought disclosure under FOIA of various categories of documents relating to the DOJ Civil Division's case management system. Among the information the DOJ sought to withhold under Exemption 5 were "daily time reporting records of attorneys and paralegals (for open cases only)." Id. at 90. In adopting the defendant's position, the court explained that "time records reflect the intensity of the government attorneys' efforts in handling individual cases" and would "reveal to opposing parties the amount of time the government's attorneys were spending on a particular case and provide insight into the government's litigation strategy at future stages." Id. at 101.

The court reached a similar conclusion in Indian Law Res. Ctr., where the plaintiff sought disclosure of materials describing legal services provided to Indian tribes, including "periodic law firm statements to the Tribal Council, with attached vouchers describing in detail legal services provided and travel expenses incurred." Indian Law Res. Ctr., 477 F. Supp. at 146. The court found the information to be privileged, explaining:

 

"Their detailed itemization of persons contacted and locations visited on particular days . . . and precise amounts of attorney time spent on identified issues, frequently relates to matters of past, present or potential future litigation. The vouchers reveal strategies developed by Hopi counsel in anticipation of preventing or preparing for legal action to safeguard tribal interests."

 

Id. at 148 (citing Hickman v. Taylor, 329 U.S. 495 (1947). Outside the FOIA context, this Court relied on Indian Law Res. Ctr. in Washington Bancorporation in holding that "[t]ime records are protected by the attorney work product doctrine." No. Civ.A. 88-3111, 1989 WL 946533, at *5.

There is no reason to reach a different conclusion here. The withheld records would reveal privileged information about the IRS investigation. Time records tell a story, revealing not only whether Ms. Bosserman is active on the case, but also the intensity of her activity, and where in the broader course of the investigation the activity took place. Hermilla Decl. ¶ 16. These insights, in turn, can be pieced together with other information about the investigation to paint a composite picture of the government's strategies and investigative plans. Id.

In effect, opening such information to public scrutiny "would force officials to punch a public time clock." Wolfe v. U.S. Dep't of Health and Human Servs., 839 F.2d 768, 776 (D.C. Cir. 1988). Through regular FOIA requests, interested parties could keep a finger on the pulse of an investigation by monitoring its progress and examining the day-to-day work of investigators. Hermilla Decl. ¶ 13. Such interference into the investigative process would run contrary to the purpose of the work product doctrine, which is to promote attorney preparation by allowing them to "work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel." Hickman, 329 U.S. at 510. As the D.C. Circuit recognized, "It strains credulity to believe that such attention would not lead to hasty and precipitous decision-making." Id.

Moreover, even if the Court were to conclude that Ms. Bosserman's time records do not constitute work product, the time records could still be properly withheld on the basis that they are part of a record that contains work product. See Judicial Watch, 432 F.3d at 371 ("factual material is itself privileged when it appears within documents that are attorney work product."). If any part of a document constitutes work product, there is no segregation required, and the document can be withheld in full. Id. Here, the time entries were part of ICM records that contain Ms. Bosserman's personal accounts of how she spent her time at work. Hermilla Decl. ¶ 16. Those accounts reveal Ms. Bosserman's thinking and comments, and describe her investigative steps, including witness interviews, on-site visits, and consultations with supervisors and investigators. The disclosure of these notes would clearly reveal theories and strategies formed in contemplation of litigation.

B. The Time Records Are Protected by The Deliberative Process Privilege

In addition to being attorney work product, the time records are also shielded by the deliberative process privilege. A record is covered by the deliberative process privilege to the extent it "reflect[s] advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." NLRB v. Sears, Roebuck & Co., 421 U.S. at 150 (citation omitted). The privilege protects "all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be." Id. at 153 (internal quotations omitted). To qualify for this privilege, a record must be: (i) an "inter-agency or intra-agency" document, 5 U.S.C. § 552(b)(5); (ii) "predecisional," In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997); and (iii) "deliberative," id. As a threshold matter, the time records are predecisional because they were generated during the course of an ongoing criminal investigation, before any final decision was made.

Moreover, the time records withheld are "deliberative" because they shed light on the focus of the Division's investigation. "There should be considerable deference to the [agency's] judgment as to what constitutes . . . 'part of the agency give-and-take - of the deliberative process -- by which the decision itself is made.'" Chem. Mfrs. Ass'n v. Consumer Prod. Safety Comm'n, 600 F. Supp. 114, 118 (D.D.C. 1984) (citation omitted). The agency is in the best position "to know what confidentiality is needed 'to prevent injury to the quality of agency decisions.'" Id. (quoting NLRB, 421 U.S. at 151). "[E]ven material that could be characterized as 'factual' would so expose the deliberative process that it must be covered by the privilege." Wolfe, 839 F.2d at 774 (citation omitted).

The dates and number of hours spent on an investigation are details of the agency decision-making process that are protected from disclosure under the deliberative process privilege. Id. at 775 (applying Exemption 5 where "information sought would reveal the timing of the deliberative process"). Time records reveal the extent of the investigator's activity on the case, and in doing so invite inferences about the investigator's timing, the priority of her objectives, and her predecisional thought processes regarding the scope and focus of the pending investigation. Hermilla Decl. ¶ 16. In short, they reflect the agency's group thinking during the course of an active investigation, and their disclosure would discourage candid and accurate timekeeping and interfere with the decision-making process. See Russell v. U.S. Dep't of Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982) (finding that disclosure of draft manuscript could threaten candor in drafting process and cause public confusion).

 

III. The DOJ Properly Withheld Records Pursuant to

 

FOIA Exemption 7(A)

 

 

Through Exemption 7(A), FOIA protects from disclosure "records or information compiled for law enforcement purposes" when the disclosure of such records could "reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A).

As a threshold matter, because the time records in question were generated in the course of an ongoing investigation into allegations that IRS officials violated federal law, there can be no question that the information withheld was "compiled for law enforcement purposes." See, e.g., Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 926 (D.C. Cir. 2003) (recognizing that an investigation relating to breach of federal law satisfies the threshold requirement of Exemption 7(A)).

Moreover, disclosure of the time records can reasonably be expected to interfere with the ongoing criminal investigation. The Hermilla declaration identifies some of the harms that would be likely to result from disclosure. For example, disclosure would prematurely reveal the scope and focus of the investigation, thereby enabling interested parties to extrapolate the government's strategy and circumvent the investigation. Hermilla Decl. ¶ 13.

Courts have consistently found that the risk of prematurely disclosing the scope and focus of an investigation is grounds for applying Exemption 7(A). See, e.g., Ctr. for Nat'l Sec. Studies, 331 F.3d at 928 (disclosure "would enable al Qaeda or other terrorist groups to map the course of the investigation," thus giving them "a composite picture"); Solar Sources, Inc. v. United States, 142 F.3d 1033, 1039 (7th Cir. 1998) (disclosure could reveal "scope and nature" of investigation); J.P. Stevens & Co. v. Perry, 710 F.2d 136, 143 (4th Cir. 1983) (disclosure would "hinder [the agency's] ability to shape and control investigations"); Kidder v. FBI, 517 F. Supp. 2d 17, 27 (D.D.C. 2007); Suzhou Yuanda Enter. Co. v. Customs & Border Protection, 404 F. Supp. 2d 9, 14 (D.D.C. 2005) (disclosure of evidence of criminal conduct "would interfere with an agency investigation [by] inform[ing] the public of the evidence sought and scrutinized in this type of investigation"); Envtl Prot. Servs. v. EPA, 364 F. Supp. 2d 575, 588 (N.D. W. Va. 2005) (disclosure "would prematurely reveal the EPA's case"); Edmonds v. FBI, 272 F. Supp. 2d 35, 55 (D.D.C 2003) (recognizing potential harms that would result if disclosure "reveal[ed] the nature and scope of the investigations, investigative activities, the cooperation of particular individuals, the identity of potential witnesses, and the investigative steps taken to pursue interviews with individuals who can inform investigators"). Because disclosure of the requested time records would risk similar harm to the investigatory process, the records were properly withheld under Exemption 7(A).

 

IV. The DOJ Properly Withheld Records Pursuant to FOIA

 

Exemptions 6 & 7(C)

 

 

Exemption 6 and 7(C) protect the privacy of individuals from unwarranted invasion. Specifically, Exemption 6 protects "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). Exemption 7(C), which applies to law-enforcement records, is more expansive, allowing for the withholding of "records or information compiled for law enforcement purposes . . . to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C).4

Here, Exemptions 6 and 7(C) were invoked to protect Ms. Bosserman's privacy interests in her personal accounting of how she spent her time at work. At least one court has recognized that government employees have a reasonable expectation of privacy in their time records. See Berger v. IRS, 288 F. App'x 829, 832 (3d Cir. 2008). In Berger, the plaintiff sought, among other materials, the time records of an IRS officer charged with conducting a tax investigation. Id. at 830. In holding that the time records had been properly withheld under Exemption 6, the Court stated that the investigator "has a privacy interest in her records as a whole because they are a personal recording of how she spent her time at work." Id. at 832. That privacy interest outweighed the "weak" public interest in disclosure of the records, which would serve only the "appellants' narrow interest in knowing how she investigated their particular case." Id. at 833.

There is no reason to reach a different outcome here. Although Ms. Bosserman's privacy interests have been somewhat diminished by the public disclosure of her involvement in the IRS targeting investigation, she still has an expectation of privacy in the non-disclosure of information relating to her work on the IRS investigation. See, e.g., Barnard v. U.S. Dep't of Homeland Sec., 598 F. Supp. 2d 1, 12 (D.D.C. 2009) ("Plaintiff's argument is foreclosed by a long line of cases recognizing that individuals maintain an interest in their privacy even where some information is known about them publicly."). Specifically, any law enforcement employee involved in a criminal investigation has "a substantial privacy interest" in non-disclosure of information relating to her work, "because disclosure may result in embarrassment and harassment." Manna v. U.S. Dep't of Justice, 51 F.3d 1158, 1166 (3d Cir. 1995); Judicial Watch v. U.S. Dep't of Army, 402 F. Supp. 2d 241, 250-51 (D.D.C. 2005) ("The privacy interest of civilian federal employees includes the right to control information related to themselves and to avoid disclosures that 'could conceivably subject them to annoyance or harassment in either their official or private lives."). For instance, disclosure of time records could "make the employee vulnerable to annoyance and even harassment in both her private and professional lives. It could also invite speculation about more personal matters such as medical or family leave." Hermilla Decl. ¶ 18; see also Lesar v. U.S. Dep't of Justice, 636 F.2d 472, 487 (D.C. Cir. 1980) (law enforcement personnel retain "a legitimate interest in preserving the secrecy of matters that conceivably could subject them to annoyance or harassment in either their official or private lives.").

Once the agency shows that a legitimate privacy interest exists, then the burden flips to the requester to show that (1) "the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake," and (2) "the information is likely to advance that interest." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004); accord Boyd v. Criminal Div. of the U.S. Dep't of Justice, 475 F.3d 381, 387 (D.C. Cir. 2007). For the purposes of this analysis, the '"only relevant public interest . . . is the extent to which disclosure of the information sought would she[d] light on the agency's performance of its statutory duties or otherwise let citizens know what their government is up to.'" Bibles v. Or. Natural Desert Ass'n, 519 U.S. 355, 355-56 (1997) (internal citation omitted).

Here, there is no public interest served by revealing Ms. Bosserman's time records, as the disclosure of the time records would not offer any meaningful insight into to how the Civil Rights Division is executing its statutory duties. See, e.g., Judicial Watch v. Rossotti, 285 F. Supp. 2d 17, 29 (D.D.C. 2003) ("Disclosing the names of specific employees who are performing audit work, on balance, would not reveal sufficiently how the IRS is conducting its work to outweigh those employees' legitimate privacy expectations."). The lack of public interest in an employee's records is particularly true in this case as Ms. Bosserman is only one member of a larger investigative team. Hermilla Decl. ¶ 3. Thus her records would not accurately reflect the full scope and nature of the overall investigation.

 

CONCLUSION

 

 

For the reasons set forth above, Defendant respectfully respects that this Court enter summary judgment in its favor with respect to the materials withheld by the DOJ.

November 3, 2014

Respectfully submitted,

 

 

Joyce R. Branda

 

Acting Assistant Attorney General

 

 

Elizabeth J. Shapiro

 

Deputy Branch Director,

 

Federal Programs Branch

 

 

Sam M. Singer

 

D.C. Bar. No. 1014022

 

Trial Attorney,

 

Federal Programs Branch

 

Civil Division

 

United States Department of Justice

 

20 Massachusetts Ave., NW,

 

Room 7145

 

Washington, DC 20001

 

Tel: (202) 616-8014 | Fax: (202)

 

616-8470 samuel.m.singer@usdoj.gov

 

 

Counsel for Defendant

 

FOOTNOTES

 

 

1 Treasury Inspector General for Tax Administration, Inappropriate Criteria Were used to Identify Tax-Exempt Applications for Review, Reference Number 2013-10-053, May 14, 2013.

2 A complete account of the administrative review process is provided in the declaration of Nelson Hermilla.

3 Although he did not say so in his correspondence with Judicial Watch, Mr. Hermilla also determined that withholding the requested records was proper under Exemptions 5 and 7(A). Hermilla Decl. ¶ 7.

4 As a preliminary matter, it is clear that the threshold requirement of Exemption 7(C) -- that the requested information was "compiled for law enforcement purposes" -- is satisfied in this case. Thus, the only question for the Court is whether disclosing the time records "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C).

 

END OF FOOTNOTES
DOCUMENT ATTRIBUTES
  • Case Name
    JUDICIAL WATCH, INC., 425 THIRD STREET, S.W., SUITE 800 WASHINGTON, DC 20024 Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, 950 PENNSYLVANIA AVENUE, N.W. WASHINGTON, DC 20530 Defendant.
  • Court
    United States District Court for the District of Columbia
  • Docket
    No. 1:14-cv-01024
  • Cross-Reference
    Related to Judicial Watch Inc. v. U.S. Dept. of Justice, No.

    1:14-cv-01024 (D.D.C. 2015) 2015 TNT 18-12: Other Court Documents.
  • Subject Area/Tax Topics
  • Jurisdictions
  • Language
    English
  • Tax Analysts Document Number
    Doc 2015-1972
  • Tax Analysts Electronic Citation
    2015 TNT 18-39
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