UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PETER BERNEGGER,

Plaintiff,

v. Civil Action No. 17-563 (RDM) EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS,

Defendant.

MEMORANDUM OPINION AND ORDER

Peter Bernegger was convicted of mail and bank fraud in 2009 in the U.S. District Court

for the Northern District of Mississippi. Since then, he has filed a number of lawsuits against

individuals involved in his criminal case, alleging that they engaged in various forms of

misconduct. In support of this effort, Bernegger submitted a Freedom of Information Act

(“FOIA”),

, and Privacy Act, 5 U.S.C. § 552a, request to the Executive Office for

United States Attorneys (“EOUSA”), seeking electronic communications to or from three

Assistant United States Attorneys (“AUSAs”) or “their legal secretaries” between the dates of

March 1, 2007 and August 15, 2016, containing any reference to him, his case, or any of a list of

individuals involved in his case. Dkt. 1; Dkt. 11; Dkt. 22-2 at 2–4 (Def.’s SUMF ¶ 6). When

EOUSA failed to release the records he sought, Bernegger filed this suit to compel it to do so.

Although EOUSA eventually released hundreds of responsive records in full or with redactions,

Bernegger remains unsatisfied and asks the Court to compel EOUSA to release all of the records

he sought in full. The case is now before the Court on the parties’ cross-motions for summary judgment

and Bernegger’s motion for discovery. For the reasons explained below, the Court will GRANT

in part and DENY in part EOUSA’s motion for summary judgment, Dkt. 22, will DENY

Bernegger’s motion for partial summary judgment, Dkt. 29, and will DENY Bernegger’s motion

for discovery, Dkt. 30.

I. BACKGROUND

Plaintiff Peter Bernegger was convicted in 2009 of mail and bank fraud. United States v.

Bernegger,

, 234–36 (5th Cir. 2011); Bernegger v. United States, No. 1:07CR176,

, at *1 (N.D. Miss. Mar. 9, 2015). After he was convicted, Bernegger filed

multiple lawsuits seeking to expose the “corrupt[ion],” “misconduct,” “fraud,” and “lies” of

nearly 20 people involved in his criminal case, including judges, judicial staff, state officials, and

prosecutors. In re Bernegger, No. 3:15CV182,

, at *8–10 (N.D. Miss. Dec. 8,

2018). Bernegger’s actions reached the point that, in 2015, a district court in the Northern

District of Mississippi determined that it was necessary to “impose a sanction designed to curb

Mr. Bernegger’s penchant for abusing judicial process by filing frivolous and malicious

pleadings, motions, and communications with the court,” and thus required that he submit any

future cases he wishes to file to the Chief Judge for screening.

at *11–12.

On August 13, 2016, Bernegger submitted a FOIA and Privacy Act request to EOUSA,

seeking “all emails and/or other electronic communications of AUSA Robert J. Mims, AUSA

Clyde McGee, AUSA David Sanders . . . and of their legal secretaries” that referred to him, his

criminal case or case number, or a list of lawyers, court personnel, and others. Dkt. 22-3 at 27–

28 (Stone Decl. Ex. B). He specified, moreover, that his request was intended to cover the

period from March 1, 2007 through August 15, 2016.

(Stone Decl. Ex. B). Bernegger

2 later expanded his request to include emails to or from a probation officer in the Northern

District of Mississippi.

(Stone Decl. Ex. C). On November 1, EOUSA sent Bernegger

a letter acknowledging receipt of his request and informing him that his request, like all others,

would be processed on a “first in, first out” basis.

(Stone Decl. Ex. D). On March 13,

2017, EOUSA sent Bernegger a second letter—this time informing him that “[t]he FOIA point of

contact for the [U.S. Attorney’s Office for the] Northern District of Missouri” had begun the

process of searching for responsive records and “estimate[d] [that] approximately 1,375 pages of

potentially responsive records [had] been located.”

(Stone Decl. Ex. E). The letter also

asked that Bernegger agree to the estimated duplication fee associated with his request.

(Stone Decl. Ex. E).

On March 29, 2017, Bernegger filed this suit to compel EOUSA to release all records

responsive to his request. See Dkt. 1. Between August 2017 and December 2017, EOUSA

released to Bernegger 72 pages of records in full and 88 pages of records in part, withholding

130 pages of records in full. Dkt. 22-3 at 4 (Stone Decl. ¶¶ 12, 14–15). EOUSA also referred

certain records to the Internal Revenue Service (“IRS”) and the Federal Bureau of Investigation

(“FBI”) to review, “since the records originated with those agencies.”

(Stone Decl. ¶ 12).

The IRS released all the records that were referred to it,

(Stone Decl. Ex. J), while the

FBI released 8 pages in full, 11 pages in part, and withheld in full 77 pages of records, Dkt. 22-5

at 2–3 (Hardy Decl. ¶¶ 4, 8). Bernegger does not challenge the FBI’s decision to withhold any of

these records in whole or in part, nor does he claim that the IRS has failed to release any

responsive records. Dkt. 31 at 8.

EOUSA has now moved for summary judgment, submitting that it has conducted an

adequate search and that its withholdings and redactions were justified under FOIA and the

3 Privacy Act. Dkt. 22. EOUSA supports its motion with the declarations of Princina Stone, an

Attorney-Advisor with the FOIA staff of EOUSA, Dkt. 22-3 at 1 (Stone Decl. ¶ 1); Brenda Gill,

the FOIA Point of Contact for the United States Attorney’s Office for the Northern District of

Mississippi during the time Bernegger submitted his FOIA request, Dkt. 22-4 at 1 (Gill Decl.

¶ 1); and David Hardy, Section Chief of the Record/Information Dissemination Section of the

Records Management Division with the FBI, Dkt. 22-5 at 1 (Hardy Decl. ¶ 1).

Bernegger opposes EOUSA’s motion on numerous grounds. He challenges the adequacy

of EOUSA’s search and all of its withholdings and redactions, arguing—among other things—

that there is a discrepancy between the number of pages of records that it originally found and

the number of pages it has subsequently accounted for; that EOUSA’s declarations are not based

on personal knowledge and are thus invalid; that it failed to conduct an adequate search and

improperly invoked various FOIA exemptions; and that the government’s “bad faith” precludes

EOUSA from withholding any responsive records in whole or in part. Dkt. 31. Moreover,

relying on the same arguments, Bernegger argues that he is entitled to the entry of “partial

summary judgment” in his favor, Dkt. 29, or, in the alternative, to discovery, Dkt. 30.

II. LEGAL STANDARD

The Freedom of Information Act is premised on the notion that “an informed citizenry is

“vital to the functioning of a democratic society . . . [and] needed to check against corruption and

to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co.,

(1978). The Act embodies a “general philosophy of full agency disclosure.” U.S.

Dep’t of Def. v. Fed. Labor Relations Auth.,

(1994) (quoting Dep’t of Air

Force v. Rose,

(1976)). It thus mandates that an agency disclose records on

request unless they fall within one of nine exemptions. “These exemptions are ‘explicitly made

4 exclusive’ and must be ‘narrowly construed.’” Milner v. Dep’t of Navy,

, 565

(2011) (quoting EPA v. Mink,

(1973), and FBI v. Abramson,

(1982)).

FOIA cases are typically resolved on motions for summary judgment under Federal Rule

of Civil Procedure 56. See Beltranena v. U.S. Dep’t of State,

(D.D.C.

2011). To prevail on a summary judgment motion, the moving party must demonstrate that there

are no genuine issues of material fact and that he or she is entitled to judgment as a matter of

law. See Celotex Corp. v. Catrett,

, 322–23 (1986). In a FOIA action, the agency

may meet its burden by submitting “relatively detailed and non-conclusory” affidavits or

declarations, SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991), and an index

of the information withheld, Vaughn v. Rosen,

, 827–28 (D.C. Cir. 1973); Summers

v. Dep’t of Justice,

(D.C. Cir. 1998). An agency “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 [FOIA’s]

inspection requirements.’” Students Against Genocide v. Dep’t of State,

(D.C.

Cir. 2001) (quoting Goland v. CIA,

(D.C. Cir. 1978)). The Court reviews the

agency’s decision de novo, and the agency bears the burden of sustaining its action.

(a)(4)(B).

III. ANALYSIS

Bernegger’s principal contentions fall into four categories: First, he claims that

EOUSA’s own estimation of the number of pages of potentially responsive records shows that it

has failed to release hundreds of pages of records. Second, he argues that neither of the

declarations that EOUSA relies upon in its motion were based on personal knowledge, and thus

5 neither can support the entry of summary judgment. Third, he contends that EOUSA’s search

for responsive records was inadequate in various respects. Fourth, he challenges EOUSA’s

reliance on the asserted FOIA exemptions and argues that the government’s “bad faith” vitiates

any defense to release of all of the records sought in his FOIA request. The Court will consider

each set of arguments in turn.

A. “Missing” Records

Bernegger first argues that he is entitled to the release of 540 records that were not

released, listed in EOUSA’s Vaughn index, or otherwise identified as exempt from disclosure.

Dkt. 31 at 9–12. He apparently derives this number of “missing” records by starting with the

assertion in EOUSA’s March 13, 2017 letter, in which it asserted that the FOIA “point of

contact” for the U.S. Attorney’s Office in the Northern District of Mississippi “estimate[d]” that

“approximately 1,375 pages of potentially responsive records [had] been located.” Dkt. 22-3 at

41 (Stone Decl. Ex. E). Bernegger then subtracted from 1,375 the number of pages of records

that EOUSA eventually released, identified in its Vaughn index, or identified as duplicates, and

arrived at the conclusion that 540 “records” are “missing.” See Dkt. 31 at 9–10. The Court is

unpersuaded.

To start, EOUSA’s March 13, 2017 letter never states that the U.S. Attorney’s Office had

identified 1,375 responsive records. Rather, it merely “estimate[d]” that it had located 1,375

“pages”—not records—of “potentially responsive”—not responsive—materials. Dkt. 22-3 at 41

(Stone Decl. Ex. E). Brenda Gill, the FOIA contact for the U.S. Attorney’s Office in the

Northern District of Mississippi, explains in her supplemental declaration that she originally

searched for “all communications” contained in Bernegger’s file and that she based her

“estimate” of “potentially responsive” materials,

(Stone Decl. Ex. E), on that overly

expansive search. Dkt. 32-2 at 1–2 (Supp. Gill Decl. ¶¶ 2–5) (emphasis added). The scope of 6 her search, and the number of potentially responsive pages, was narrowed when “it was

[subsequently] determined that [Bernegger’s] request” did not include “all communications” in

his file.

(Supp. Gill Decl. ¶ 5).

Needless to say, an estimate does not create an entitlement to that number of pages of

records. EOUSA was required to release or lawfully withhold only those records within the

scope of Bernegger’s request. The Court is convinced by the uncontroverted evidence that it did

so and that the discrepancy between EOUSA’s initial estimation and its ultimate response is not

the product of bad faith and is not evidence that any of the requested records are “missing.”

B. Adequacy of Declarations

Bernegger also argues that the declarations that EOUSA relies upon—one from Princina

Stone, an Attorney-Advisor in on EOUSA’s FOIA/Privacy Act staff, and one from Brenda Gill,

the FOIA “Point of Contact” for the U.S. Attorney’s Office for the Northern District of

Mississippi—are “invalid, null, and void” because they “fail[] the ‘personal knowledge’

requirement” of Federal Rule of Civil Procedure 56(c). Dkt. 31 at 12. As Bernegger correctly

observes, Rule 56(c) provides that a declaration “used to support” a motion for summary

judgment “must be made on personal knowledge.” Fed. R. Civ. P. 56(c). From this non-

controversial premise, however, he incorrectly contends that the Stone and Gill declarations—

and the Vaughn index that accompanies the Stone declaration—“must be struck” because both

declarants merely attest that their declarations are “true and correct” to “the best of [their]

knowledge and belief,” Dkt. 31 at 12–15, and because neither declares to “have personal, or first

hand, knowledge” of all of the relevant information.

.

Bernegger misunderstands the personal knowledge requirements for FOIA declarations.

In the FOIA context, a declarant “satisfies the personal knowledge requirement in Rule [56(c)]

if[,] in his declaration, [he] attests to his personal knowledge of the procedures used in handling 7 [a FOIA] request and his familiarity with the documents in question.” Barnard v. Dep’t of

Homeland Sec.,

(D.D.C. 2008) (internal quotation marks and

alterations omitted); see also Johnson v. United States,

(D.D.C. 2017);

Inst. for Policy Studies v. CIA,

(D.D.C. 2012); Hall v. Dep’t of Justice,

, 16 n.1 (D.D.C. 1999). A FOIA declarant, moreover, “may include statements

in [his] declaration[] based on information [he] ha[s] obtained in the course of [his] official

duties.” Barnard, 598 F. Supp. 2d at 19; see also Hainey v. U.S. Dep’t of the Interior,

(D.D.C. 2013); Thompson v. EOUSA,

(D.D.C. 2008).

The Stone and Gill declarations satisfy this standard, and, indeed, do not differ in any relevant

respect from the types of declarations that are routinely filed, and relied upon, in FOIA cases.

As an initial matter, both declarants establish their competence “to testify on the matters

stated.” Fed. R. Civ. P. 56(c)(4). Stone is an attorney-advisor who works in EOUSA’s FOIA

unit, where she “serve[s] as a liaison among other divisions and offices of the” Department of

Justice and “provide[s] advice on responding to requests for access to information located in . . .

the 93 United States Attorneys’ Offices.” Dkt. 22-3 at 1 (Stone Decl. ¶ 1). More to the point,

she is “familiar with the procedures followed by [her] office in responding to the FOIA

request[]” that Bernegger submitted, and her declaration is based “upon [her] personal

knowledge, information provided to [her] in [her] official capacity, and determinations made in

accordance” with that information. Id. at 2 (Stone Decl. ¶¶ 2–3). Gill, in turn, was the FOIA

point of contact for the U.S. Attorney’s Office for the Northern District of Mississippi at the

relevant time, where her “duties included receiving and reviewing requests made pursuant to

FOIA” and the Privacy Act. Dkt. 22-4 at 1 (Gill Decl. ¶¶ 1–2). She was responsible, moreover,

“for conducting searches within” the U.S. Attorney’s Office “for records responsive to FOIA”

8 and Privacy Act requests; she is “familiar with the procedures followed by” her office in

responding to FOIA and Privacy Act requests, and, significantly, was personally involved in

responding to Bernegger’s request. Id. at 1–6 (Gill Decl. ¶¶ 3–4, 7–20). Nothing more is

required to offer competent testimony on the topics addressed in the Stone and Gill declarations.

Accordingly, Bernegger’s objections to EOUSA’s declarations and accompanying

Vaughn index are without merit.

C. Adequacy of Search

Bernegger also challenges the adequacy of EOUSA’s search for responsive records. See

Dkt. 31 at 19–21. The adequacy of an agency’s search for records “is analyzed under the same

standard” for purposes of both FOIA and the Privacy Act. Thompson v. U.S. Dep’t of Justice,

(D.D.C. 2015). Under both statutes, the adequacy of the “search is

generally determined not by the fruits of the search, but by the appropriateness of the methods

used to carry [it] out.” Iturralde v. Comptroller of Currency,

(D.C. Cir.

2003). The agency “cannot limit its search to only one record system if there are others that are

likely to turn up the information requested,” but, at the same time, it need not “search every

record system.” Oglesby v. U.S. Dep’t of Army,

(D.C. Cir. 1990). Similarly,

the agency need not deploy every conceivable search term or permit the FOIA requester to

dictate the search terms in the course of litigation, but it must use terms reasonably calculated to

locate responsive records. See Agility Pub. Warehousing Co. K.S.C. v. NSA,

(D.D.C. 2015) (“Where the search terms are reasonably calculated to lead to responsive

documents, the Court should not ‘micro manage’ the agency’s search.”); see also Physicians for

Human Rights v. U.S. Dep’t of Def.,

(D.D.C. 2009) (“[Agencies have]

discretion in crafting lists of search terms that they believe[] to be reasonably tailored to uncover

documents responsive to the FOIA request.”). 9 The “agency fulfills its obligations under FOIA” and the Privacy Act “if it can

demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all

relevant documents.’” Valencia-Lucena v. U.S. Coast Guard,

(D.C. Cir.

1999) (quoting Truitt v. Dep’t of State,

(D.C. Cir. 1990)). To prevail on

summary judgment, the agency must submit declarations that “‘denote which files were

searched,’ [and] by whom those files were searched, and [that] reflect a ‘systematic approach to

document location.’” Liberation Newspaper v. U.S. Dep’t of State,

(D.D.C. 2015) (quoting Weisberg v. U.S. Dep’t of Justice,

(D.C. Cir. 1980));

see also Baker & Hostetler LLP v. U.S. Dep’t of Commerce,

(D.C. Cir. 2006);

Oglesby,

. Those declarations “are accorded a presumption of good faith, which

cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other

documents.’” SafeCard Servs.,

(quoting Ground Saucer Watch, Inc. v. CIA,

(D.C. Cir. 1981)). But where “a review of the record raises substantial doubt,

particularly in view of ‘well defined requests and positive indications of overlooked materials,’

summary judgment is inappropriate.” Valencia-Lucena,

(citation omitted).

Bernegger’s first challenge to the adequacy of EOUSA’s search merely repeats his

contention that the Stone and Gill declarations are “defective,” Dkt. 31 at 19–20, which the Court

has already rejected. He further argues that EOUSA’s motion is based on the “blatantly false

claim” that “Mr. Bernegger requested communications about his criminal case that were sent to

and from three specific AUSA[]s and their legal assistants.”

at 20 (quoting Dkt. 22-1 at 18).

This characterization of the scope of his request is incorrect, Bernegger argues, because his

request was “not limit[ed]” to “just his ‘criminal case,’” or to only communications between the

“AUSA[s] and their legal assistants.”

The evidence shows, however, that the U.S.

10 Attorney’s Office conducted a search for the records Bernegger sought and did not limit its

search to records from “his ‘criminal case.’” As Gill explains in her declaration, she searched for

emails “sent to or sent from AUSAs Mims, McGee, Sanders or their legal secretaries” and that,

at her request, AUSA Mims and McGee “searched their computers for electronic

communications.” Dkt. 22-4 at 4–5 (Gill Decl. ¶¶ 15–16).

More generally, the Court is convinced that the government engaged in a thorough search

for responsive records. Although the U.S. Attorney’s Office had not retained electronically

stored information (“ESI”) for “four former employees” referenced in Bernegger’s FOIA/Privacy

Act request—one of the named AUSAs and three legal secretaries—it was “able to obtain ESI

. . . from four other former legal secretaries,” and it searched those files for responsive records.

at 3–4 (Gill Decl. ¶¶ 14–15). In addition, Gill “made inquiries of all current employees”—

including AUSAs Mims and McGee—“who [had] access to records” likely to contain material

“responsive to [Bernegger’s] FOIA request,” and she searched both electronic and “hard-copy”

files for potentially responsive records. Id. at 5 (Gill Decl. ¶¶ 16–17). Among other things, she

searched email records for “the captioned names or number of plaintiff’s criminal case” and

searched those emails for “any that were sent to or sent from AUSAs Mims, McGee, Sanders, or

their legal secretaries.” Id. at 4 (Gill Decl. ¶ 15). In her supplemental declaration, moreover,

Gill attests that office personnel working at her direction searched AUSA Mims and AUSA

McGee’s computers “using the case numbers listed in” Bernegger’s FOIA request, as well as

“eight multiple variables of [those] numbers,” and also searched for records containing the name

“Bernegger.” Dkt. 32-2 at 2–3 (Supp. Gill Decl. ¶¶ 9–10). It is also clear from the Gill

declaration that the U.S. Attorney’s Office did not narrow its search, as Bernegger contends, to

emails between the specified AUSAs and their secretaries or to emails pertaining to Bernegger’s

11 criminal case. Rather, as requested, the office searched for any emails that referenced

Bernegger’s name or the specified criminal case numbers, as well as emails sent to or received

by the specified AUSAs and their legal secretaries.

Finally, Bernegger challenges the adequacy of the search on the ground that EOUSA has

not “disclosed” “the age of the computers” that were searched, and it is possible that the

computers or hard drives were replaced in the time that passed between 2009 and the relevant

searches. Dkt. 31 at 20. That may be true, but it does not call into question the adequacy of the

search. Even if computers or hard drives were replaced, there is no reason to believe that the

U.S. Attorney’s Office kept the old computers or hard drives, and, indeed, Gill attested that she

is “not aware of any other locations . . . where any other records that might be responsive to

plaintiff’s requests are likely to be located.” Dkt. 22-4 at 6 (Gill Decl. ¶ 21). Like all FOIA

requesters, Bernegger is “entitled only to records that an agency has in fact chosen to create and

retain.” Yeager v. DEA,

(D.C. Cir. 1982).

Accordingly, the Court concludes that EOUSA has conducted an adequate search for

responsive records.

D. Exemptions Applied

EOUSA declined to release all or portions of certain records pursuant to FOIA

Exemptions 5, 6, and 7(C). 1 For the most part, Bernegger does not address the application of

these exemptions to specific records but, rather, broadly asserts that “[a]ll of the . . . records

located must be released in full . . . [because] there was gross government misconduct” in his

1 EOUSA also invoked Exemption 7(F), which applies to information compiled for law enforcement purposes the disclosure of which “could reasonably be expected to endanger the life or physical safety of any individual.”

(b)(7)(F). Because EOUSA also invoked Exemptions 6 and 7(C) to protect the same records, and because the Court concludes that it lawfully invoked those exemptions, the Court need not separately address Exemption 7(F).

12 criminal case. Dkt. 31 at 23. He then goes on for over twenty pages to detail accusations of

misconduct that he claims took place during the prosecution of his criminal case.

at 22–40,

45–46. Buried in this discourse, however, Bernegger does raise a handful of more targeted

contentions. With two minor exceptions, the Court is unpersuaded by Bernegger’s arguments.

1. Exemption 6 & 7(C)

FOIA Exemptions 6 and 7(C) protect personal privacy. Although both exemptions

protect similar interests, they differ in scope. Exemption 6 shields “personnel and medical files

and similar files the disclosure of which would constitute a clearly unwarranted invasion of

personal privacy.”

(b)(6). “[T]he mere fact that an agency file or record contains

personal, identifying information,” however, “is not enough to invoke Exemption 6;” in addition,

the information must be “of such a nature that its disclosure would constitute a clearly

unwarranted privacy invasion.” Judicial Watch, Inc. v. U.S. Dep’t of State,

,

49–50 (D.D.C. 2017) (quoting Nat’l Ass’n of Home Builders v. Norton,

(D.C.

Cir. 2002)). This, in turn, requires a two-part analysis. See Edelman v. SEC,

(D.D.C. Mar. 23, 2018). The Court must first determine whether “disclosure would

compromise a substantial, as opposed to a de minimis, privacy interest.” Nat’l Ass’n of Retired

Fed. Emps. v. Horner,

(D.C. Cir. 1989). If the agency clears that hurdle, the

Court must then “balance the privacy interest in non-disclosure against the public interest” in

disclosure. Consumers’ Checkbook Ctr. for the Study of Servs. v. U.S. Dep’t of Health & Human

Servs.,

(D.C. Cir. 2009); see also Judicial Watch, Inc., 282 F. Supp. 3d at

49−50. The analysis of the “public interest” necessarily focuses on the core purpose for which

FOIA was enacted, that is, to ‘shed[] light on an agency’s performance of its statutory duties.’”

Davy v. CIA,

(D.D.C. 2004) (quoting U.S. Dep’t of Justice v. Reporters

Comm. for Freedom of the Press,

(1989)). 13 Exemption 7(C), in contrast, applies to a narrower category of records than Exemption 6,

but it offers more robust protection of those records. See Tracy v. U.S. Dep’t of Justice,

(D.D.C. 2016). Unlike Exemption 6, Exemption 7(C) applies only to records

“compiled for law enforcement purposes.”

(b)(7)(C). But, while Exemption 6 is

limited to records “the disclosure of which would constitute a clearly unwarranted invasion of

personal privacy,”

§ 556(b)(6), “[t]he adverb ‘clearly’ . . . is not used in Exemption 7(C),”

Nat’l Archives & Records Admin. v. Favish,

(2004). Moreover, while

“Exemption 6 refers to disclosures that ‘would constitute’ an invasion of privacy, Exemption

7(C) encompasses any disclosure that ‘could reasonably be expected to constitute’ such an

invasion.” Reporters Comm. for Freedom of the Press,

.

Relying on both Exemption 6 and Exemption 7(C), EOUSA has withheld “names,

address[es,] and telephone numbers of AUSAs, legal assistants, law enforcement officers, and

other personally identifiable information related to witness or nonparty individuals.” Dkt. 22-3

at 8 (Stone Decl. ¶ 32); Dkt. 22-3 at 13–26 (Stone Decl. Ex. A). According to EOUSA, the

individuals whose personal information was withheld have a strong privacy interest here because

Bernegger has engaged in a campaign of “harassment of individuals involved in his criminal case

and [he has a] penchant . . . for filing frivolous civil suits” against those individuals. Dkt. 22-1 at

26. In response, Bernegger argues that neither exemption applies because any privacy interest is

outweighed by the public interest in exposing “corruption or malfeasance” on the part of those

public employees. Dkt. 31 at 23.

The information at issue here involves cognizable privacy interests. It includes “names,

address[es,] and telephone number of AUSAs, legal assistants, law enforcement officers, and

other personally identifiable information related to witnesses and other nonparty individuals,”

14 Dkt. 22-3 at 8 (Stone Decl. ¶ 32), and EOUSA has shown that there is reason to believe that

Bernegger will “harass[]” or “retaliat[e] against those individuals identified,”

at 8–9 (Stone

Decl. ¶ 33). See In re Bernegger,

, at *7 (describing Bernegger’s efforts to

“punish and frustrate those involved in the investigation and prosecution of the criminal fraud

charges against him”). Indeed, “Congress’ primary purpose in enacting Exemption 6”—and, by

extension 7(C)—“was to protect individuals from the injury and embarrassment that can result

from the unnecessary disclosure of personal information.” Dep’t of State v. Wash. Post Co.,

(1982); see also Garcia v. EOUSA,

(D.D.C. 2018) (“Courts

have applied this exemption broadly, holding specifically that Exemption 6 covers such items as

a person’s name, address, place of birth, employment history, and telephone number.” (internal

quotation marks omitted)).

The existence of a privacy interest, standing alone, however, is insufficient to support

EOUSA’s reliance on Exemptions 6 and 7(C). Both exemptions apply only to “unwarranted

invasion[s] of personal privacy,”

(b)(6), (b)(7)(C), and thus both require that

agencies and courts balance the privacy interest at stake against the public interest in disclosure.

Favish,

; Consumers’ Checkbook Ctr.,

. Bernegger does not

take issue with the premise that the redacted information implicates personal privacy, but he

argues that any such interest is outweighed by the public interest in exposing government

corruption. In the abstract, he is right. But, as applied to the facts of this case, he is not. As the

Supreme Court has emphasized, it is not enough for a FOIA requester merely to raise accusations

of misconduct; a FOIA requester’s “bare suspicion” of government misconduct is insufficient to

outweigh a “cognizable” privacy interest. Favish,

. Rather, “the requester must

produce evidence that would warrant a belief by a reasonable person that the alleged

15 Government impropriety might have occurred.”

By any measure, Bernegger fails that test.

He merely rehashes the “venomous and unsubstantiated allegations of misconduct directed at

prosecutors, judges, court staff, witnesses, and others” that other courts have previously

considered and rejected. See In re Bernegger,

, at *11; Bernegger,

, at *2–3. These baseless accusations are insufficient to overcome the privacy interests

at stake.

Bernegger also argues that Exemptions 6 and 7(C) do not apply because the personal

information at issue is already known to him. Dkt. 31 at 40–41. But agencies releasing records

pursuant to FOIA requests must be mindful that “[d]ocuments released in a FOIA action must be

made available to the public as a whole.” Stonehill v. IRS,

(D.C. Cir. 2009);

see also Clay v. U.S. Dep’t Justice,

(D.D.C. 2010) (“The FOIA’s . . .

exemptions are designed to protect those ‘legitimate governmental and private interests’ that

might be ‘harmed by release of certain types of information’ to the public at large.” (quoting

August v. FBI,

(D.C. Cir. 2003))). In releasing private information, “an

agency must operate on the assumption . . . that the recipient will further distribute the

information, or that others will seek the same information and reasonably expect similar

treatment by the FOIA office.” Sai v. Transp. Sec. Admin.,

(D.D.C.

2018). Moreover, on the facts of this case, EOUSA reasonably concluded that permitting

Bernegger to tie the names of government lawyers, their assistants, law enforcement officers, and

others to specific communications would likely invite further harassment.

In addition, Bernegger argues that “government employees . . . . have no right

whatsoever to privacy when conducting gov[ernment] business on gov[ernment] computers.”

Dkt. 31 at 45. This argument hardly merits discussion. Suffice it to say, the privacy interest of

16 federal employees “includes the right to control information related to themselves and to avoid

disclosures that ‘. . . conceivably [could] subject them to annoyance or harassment in either their

official or private lives.’” Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec.,

(D.D.C. 2005) (quoting Lesar v. U.S. Dep’t of Justice,

(D.C. Cir.

1980)).

Bernegger raises one final argument, however, that EOUSA fails directly to confront and

that, at a minimum, requires further briefing and explanation. As he notes, EOUSA relied on

Exemptions 6 and 7(C) to redact identifying information from various emails exchanged between

the U.S. Attorney’s Office and the U.S. District Court for the Northern District of Mississippi.

Dkt. 31 at 42. Courts have long recognized the important “tradition of public access to records

of a judicial proceeding.” United States v. Hubbard,

(D.C. Cir. 1980). That

tradition “serves the important functions of ensuring the integrity of judicial proceedings in

particular and of the law enforcement process more generally.”

. Although that

“tradition of access is not without . . . exceptions,”

the public interest in access to judicial

filings is undeniable. The fact that the communications at issue here occurred by email,

moreover, may signal that they were ministerial, but it does not alter their essential character as

“records of a judicial proceeding.” And, just as the names and contact information of those who

appear on pleadings and other judicial records is usually a matter of public record, it is far from

evident why similar information contained in judicial records taking the form of email should not

receive similar treatment.

Notwithstanding all of this, there may be good reasons for the redactions that EOUSA

made in the email correspondence with the court. Those reasons, however, are not included in

EOUSA’s filings to date, and, accordingly, the Court cannot—at least on the present record—

17 grant summary judgment in favor of EOUSA with respect to the redactions from the email

correspondence with the court.

In sum, the Court concludes that EOUSA properly withheld the documents and portions

of documents pursuant to Exemption 6 and 7(C), with the exception of the redactions to the

email correspondence with the U.S. District Court for the Northern District of Mississippi. In

light of this conclusion, EOUSA should either (1) re-release the correspondence with the court

without the Exemption 6 and 7(C) redactions, or (2) file a further declaration explaining in

greater detail why it submits that the redactions are appropriate.

2. Exemption 5

Exemption 5 protects “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.”

(b)(5). This exemption shields “those documents . . . normally privileged in the civil

discovery context.” NLRB v. Sears, Roebuck & Co.,

(1975). Courts have,

accordingly, incorporated the three traditional civil discovery privileges under Exemption 5: “(1)

the attorney work-product privilege; (2) the deliberative process privilege; and (3) the attorney-

client privilege.” Wright v. U.S. Dep’t of Justice,

(D.D.C. 2015).

Bernegger challenges EOUSA’s invocation of the deliberative process privilege. See Dkt. 31 at

39.

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.’” Sears, Roebuck & Co.,

(quoting Carl

Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena,

(D.D.C. 1966)). The “privilege

rests on the obvious realization that officials will not communicate candidly among themselves if

each remark is a potential item of discovery and front page news, and its object is to enhance ‘the 18 quality of agency decisions,’ . . . by protecting open and frank discussion among those who make

them within the Government.” Dep’t of Interior v. Klamath Water Users Protective Ass’n,

, 8–9 (2001) (citations omitted). “Manifestly, the ultimate purpose of this long-recognized

privilege is to prevent injury to the quality of agency decisions.” Sears, Roebuck & Co.,

. In responding to Bernegger’s FOIA request, EOUSA withheld documents and

portions of documents that reflect “the back and forth pre-decisional communications among”

attorneys and legal assistants from the U.S. Attorney’s Office, “FBI agents, and other state and

federal [agents] involved in some way with the Bernegger litigation,” as well as “draft unsigned

and undated pleadings prepared by the government attorney during plaintiff’s criminal trial.”

Dkt. 22-3 at 7 (Stone Decl. ¶ 27). According to Bernegger, “grave gov[ernment] misconduct in

and around his trial” precludes EOUSA from relying on the privilege. Dkt. 31 at 39.

The question whether Exemption 5 incorporates a “government misconduct” exception is

unsettled in the D.C. Circuit. See, e.g., Judicial Watch, Inc. v. U.S. Dep’t of State,

(D.D.C. 2018); Judicial Watch, Inc. v. U.S. Dep’t of Commerce, No. 15-cv-2088,

, at *2 (D.D.C. Aug. 21, 2017); Neighborhood Assistance Corp. of Am. v. U.S.

Dep’t of Hous. & Urban Dev.,

(D.D.C. 2013). Bernegger points to In re

Sealed Case,

(D.C. Cir. 1997), in support of his contention that such an exception

exists. In that case, the D.C. Circuit did observe that, because the “deliberative process privilege

is a qualified privilege,” it may be overcome “where there is reason to believe the documents

sought may shed light on government misconduct.”

at 737–78 (quoting Texaco P.R., Inc. v.

Dep’t of Consumer Affairs,

(1st Cir. 1995)). In re Sealed Case, however,

concerned a grand jury subpoena, not FOIA, and the D.C. Circuit expressly disclaimed that

“[t]his characteristic of the deliberative process privilege” extends to “FOIA cases.”

at 737

19 n.5. As the court explained, FOIA differs from a subpoena “because the courts have held that the

particular purpose for which a FOIA plaintiff seeks information is not relevant in determining

whether FOIA requires disclosure.”

But, even assuming that a “government misconduct” exception does apply, courts agree

that a “plaintiff must meet a high bar to properly invoke it.” Judicial Watch, Inc.,

; see also Hall & Assocs. v. EPA,

(D.D.C. 2014) (“While there is

little case law to guide the Court on what quantum of evidence must be shown to support the

[government misconduct] exception, courts have recognized the need to apply the exception

narrowly . . . .”); ICM Registry, LLC v. U.S. Dep’t of Commerce,

(D.D.C. 2008) (“In this court, the deliberative process privilege has been disregarded in

circumstances of extreme government wrongdoing.”). Given this high bar, the Court has no

difficulty concluding that Bernegger’s unsubstantiated—and previously rejected—accusations of

government misconduct fall far short of triggering the exception.

Finally, Bernegger argues that EOUSA improperly relied on the deliberative process

privilege to redact one email. See Dkt. 31 at 72. Bernegger assumes that the redacted portion of

the email contains the text of a proposed order that the U.S. Attorney’s Office submitted to the

court, and he argues that the redacted text could not have been deliberative because the proposed

order was “sent [to] the trial court . . . three days earlier.” Dkt. 31 at 43. Because the exhibit

attached to Bernegger’s opposition brief does not include a Bates number, the Court cannot

determine whether, or how, the relevant email is described in the Vaughn index, and, more

generally, the Court cannot determine whether Bernegger’s speculation about the content and

timing of the redacted email is correct. To resolve this uncertainty, the Court will direct EOUSA

20 to provide the Court with an unredacted copy of the email for ex parte, in camera review. See

(a)(4)(B).

E. Segregability

FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to

any person requesting such record after deletion of the portions [that] are exempt.”

(b). “While the segregability requirement applies to all documents and all exemptions in the

FOIA,” the courts have recognized that “segregation is not required where the ‘exempt and

nonexempt information are inextricably intertwined, such that the excision of exempt

information would impose significant costs on the agency and produce an edited document with

little informational value.’” Covington v. McLeod,

(D.D.C. 2009)

(quoting Mays v. Drug Enf’t Admin.,

(D.C. Cir. 2000)) (first citation

omitted). The government bears “the burden of justifying nondisclosure,” Mead Data Cent., Inc.

v. U.S. Dep’t of the Air Force,

(D.C. Cir. 1977), and must “show with

reasonable specificity why the documents cannot be further segregated,” Armstrong v. Exec.

Office of the President,

(D.C. Cir. 1996) (internal quotation marks omitted).

To carry this burden, the government must provide a “‘detailed justification’ for [withheld

records’] non-segregability.” Johnson v. Exec. Office for U.S. Attorneys,

(D.C. Cir. 2002) (quoting Mead,

).

Bernegger objects to EOUSA’s representation that it reviewed the responsive records and

determined that “all reasonably segregable non-exempt material” was released, Dkt. 22-3 at 10–

11 (Stone Decl. ¶¶ 42–43), on the ground that Stone’s declaration must be struck for failure to

comply with the personal knowledge requirement of Federal Rule of Civil Procedure 56(c). As

the Court discussed above, that argument is meritless. The Court, moreover, has reviewed

21 EOUSA’s Vaughn index, see Dkt. 22-3 at 13–26 (Stone Decl. Ex. A), and concludes that it

supports EOUSA’s contention that it has released reasonably segregable material.

F. Privacy Act

Bernegger also brings suit under the Privacy Act. Dkt. 11 at 8 (Am Compl. ¶ 47). The

preceding discussion of Bernegger’s FOIA claim does not, standing alone, resolve his Privacy

Act claim because “[t]he two acts explicitly state that access to records under each is available

without regard to exemptions under the other.” Martin v. Office of Special Counsel,

(D.C. Cir. 1987). The Court must, accordingly, separately consider whether the

records at issue are subject to disclosure under the Privacy Act. Id.; see also Campbell v. U.S.

Dep’t of Justice,

(D.D.C. 2015).

Under section (j)(2) of the Privacy Act, “[t]he head of any agency” is authorized to

“promulgate rules . . . to exempt any system of records within the agency from” the disclosure

requirement if, (1) “the system of records is . . . maintained by an agency . . . which performs as

its principal function any activity pertaining to the enforcement of criminal laws,” and (2) the

system of records “consists of . . . information compiled for the purpose of a criminal

investigation . . . or . . . reports . . . compiled at any stage of the process of enforcement of the

criminal laws . . . .” 5 U.S.C. § 552a(j)(2). Relying on this authority, the Attorney General has

promulgated a rule exempting all “[c]riminal [c]ase [f]iles” from, among other provisions, the

Privacy Act’s disclosure requirement.

(a)(4). According to EOUSA, this

exemption provides ample basis to reject Bernegger’s Privacy Act claim. Dkt. 22-1 at 31–32.

Bernegger, in turn, argues that EOUSA’s Exemption (j)(2) defense fails for three reasons:

First, EOUSA failed to raise the exemption in its responsive pleading and thus waived the

defense. Second, the declarations on which EOUSA relies are “null and void.” Third, email

communications are not maintained in “criminal case files” and therefore fall outside the 22 exemption. For the reasons explained above, Bernegger’s second argument is a nonstarter: the

declarations submitted by EOUSA are not defective. Nor was EOUSA required to assert the

exemption in its responsive pleading. No such a requirement exists in the FOIA context, see,

e.g., Ctr. for Pub. Integrity v. FCC,

(D.D.C. 2007); Sciba v. Bd. of

Governor of Fed. Reserve Sys., No. 04-cv-1011,

, at *1 n.3 (D.D.C. Apr. 1,

2005) (explaining that the case law does “not specify . . . that FOIA Exemptions must be made in

the answer to the complaint”), and the Court sees no basis to apply a different approach under the

Privacy Act. To be sure, just as “an agency may waive the right to raise certain exemptions

[under FOIA] if it fails to raise them prior to the district court ruling in favor of the other party,”

Judicial Watch v. Dep’t of Army,

, 123–24 (D.D.C. 2006); see also Shapiro

v. U.S. Dep’t of Justice, No. 13-cv-555,

, at *2–3 (D.D.C. May 25, 2016)

(discussing “belated” invocation of FOIA exemptions), it may waive any Privacy Act defenses

that are not raised in briefing dispositive motions. There is no requirement, however, that an

agency identify specific exemptions in its answer.

Finally, Bernegger argues that EOUSA cannot apply Exemption (j)(2) to the emails he

requested because they were not maintained in a “criminal case file” and, therefore, are not

covered by the exemption. Dkt. 31 at 18–19. The Court need not reach that question, however,

because an email database, like that at issue here, does not constitute a “system of records” and,

thus, is not subject to the Privacy Act’s disclosure requirement in the first place. See House v.

U.S. Dep’t of Justice,

(D.D.C. 2016). The Privacy Act defines a

“system of records” as “a group of any records under the control of any agency from which

information is retrieved by the name of the individual or by some identifying number, symbol, or

other identifying particular assigned to the individual.” 5 U.S.C. § 552a(a)(5). Decisions from

23 this district “have consistently held that . . . email archives,” like the email databases at issue

here, see Dkt. 22-4 at 4–5 (Gill Decl. ¶¶ 14–16) (describing search of active and archived email

systems), “are not ‘systems of records’ under the Privacy Act because they are not indexed by

personal identifier.” Gordon v. Courter,

, 290–91 (D.D.C. 2015); see also

Campbell,

(agreeing with Gordon); Mobley v. CIA,

(D.D.C. 2015) (holding database of “e-mail traffic to and from other intelligence agencies” was

not a “system of records” because the agency “does not organize records in [the ... database] by

individuals who may be mentioned in those records, nor does [it] retrieve records about

individuals from that database by use of an individual’s name or personal identifier as a matter of

practice.”); Krieger v. U.S. Dep’t of Justice,

, 42–43 (D.D.C. 2008)

(explaining that the fact that emails could be searched by name or other identifier was

insufficient to render them a “system of records” within the meaning of the Privacy Act).

The Court, accordingly, concludes that EOUSA was not required by the Privacy Act to

search for or to produce records maintained in active or archived email systems.

G. Discovery

Bernegger has also filed a motion for discovery, once again arguing that the

government’s “bad faith” justifies extraordinary relief. He maintains, for example, that EOUSA

failed to account for “missing” documents; that it failed to conduct a search according to his

specifications; that it failed to provide the age of the computers searched; and that the U.S.

Attorney’s Office and others have engaged in a long pattern of government misconduct. See

Dkt. 30. Although courts may permit discovery in FOIA cases “where a ‘plaintiff has made a

sufficient showing that the agency acted in bad faith,’” Justice v. IRS,

(D.D.C. 2011) (quoting Voinche v. FBI,

(D.D.C. 2006)), Berneggger has

not come close to carrying this heavy burden, see Schrecker v. U.S. Dep’t of Justice,

Supp. 2d 29, 35 (D.D.C. 2002) (“Discovery in FOIA is rare and should be denied where an

agency’s declarations are reasonably detailed [and] submitted in good faith and [where] the court

is satisfied that no factual dispute remains.”). The Court will, accordingly, deny Bernegger’s

motion for discovery.

CONCLUSION

Defendant’s motion for summary judgment, Dkt. 22, is hereby GRANTED in part and

DENIED in part. EOUSA shall either (1) release unredacted versions of the emails sent to or

from the United States District Court for the Northern District of Mississippi, or (2) file a further

declaration explaining why those redactions are appropriate, notwithstanding the important

public interest in access to judicial filings. In addition, EOUSA shall provide the Court with an

unredacted version of the email reproduced on the top of page 72 of Dkt. 31 for ex parte, in

camera review. Pending the Court’s review of those further submissions from EOUSA,

Plaintiff’s cross-motion for partial summary judgment, Dkt. 29, is DENIED without prejudice.

Finally, Plaintiff’s motion for discovery, Dkt. 30, is also DENIED.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: September 20, 2018

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