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Judicial Watch • JW v DOJ 01024 Barbara Bosserman’s Time Records 1

JW v DOJ 01024 Barbara Bosserman’s Time Records 1

JW v DOJ 01024 Barbara Bosserman’s Time Records 1

Page 1: JW v DOJ 01024 Barbara Bosserman’s Time Records 1

Category:Lawsuit

Number of Pages:15

Date Created:January 14, 2015

Date Uploaded to the Library:January 27, 2015

Tags:Bossermans, Time, 01024, Barbara, DOJ, records, IRS


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THE UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT COLUMBIA 
 
JUDICIAL WATCH, INC., 
Plaintiff, Civil Action No. 14-01024 (BAH) 
U.S. DEPARTMENT 
JUSTICE, 
Defendant. 
 
PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT 
 
 Plaintiff Judicial Watch, Inc., counsel and pursuant Rule 56(c) the Federal Rules Civil Procedure, hereby cross-moves for summary judgment against Defendant U.S. Department Justice. grounds therefor, Plaintiff respectfully refers the Court the accompanying Plaintiffs Memorandum Law Opposition Defendants Motion for Summary Judgment and Support Plaintiffs Cross-Motion for Summary Judgment and Plaintiffs Response Defendants Statement Material Facts Not Dispute and Plaintiffs Statement Undisputed Material Facts Support Plaintiffs Cross-Motion for Summary Judgment.    
Dated:  January 14, 2015    Respectfully submitted, 
       /s/  Michael Bekesha                                  
Michael Bekesha (D.C.  Bar No. 995749) 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington,  20024 
(202) 646-5172 
 
Counsel for Plaintiff THE UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT COLUMBIA 
 
JUDICIAL WATCH, INC., 
Plaintiff, Civil Action No. 14-01024 (BAH) 
U.S. DEPARTMENT 
JUSTICE, 
Defendant. 
 
PLAINTIFFS MEMORANDUM LAW OPPOSITION DEFENDANTS MOTION 
FOR SUMMARY JUDGMENT AND SUPPORT 
PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT 
 
 Plaintiff Judicial Watch, Inc., counsel and pursuant Rule 56(c) the Federal Rules Civil Procedure, respectfully submits this memorandum law opposition the motion for summary judgment Defendant United States Department Justice and support its Cross-Motion for Summary Judgment. grounds thereof, Judicial Watch states follows: Introduction. 

 Pursuant the Freedom Information Act (FOIA), Plaintiff seeks records from the Defendant detailing the number hours Barbara Bosserman, attorney the Civil Rights Division, spent.  Plaintiff does not seek information describing the type work Ms. Bosserman conducted.  Nor does seek information about how she spent her time.  Nor does seek Ms. Bossermans notes about locations visited, persons consulted, staff briefings, and other case developments.  Again, Plaintiff solely seeks information about the number hours Ms. Bosserman expended the aforementioned criminal investigation.  Nevertheless, Defendant claims everything but the kitchen sink its effort withhold the time records their entirety.  
Yet fails provide any evidence whatsoever demonstrating that its claims are proper.  For that reason, Defendants motion for summary judgment should denied, Plaintiffs cross-motion should granted, and Defendant should ordered produce all responsive records. 
II. Factual Background. 
 Plaintiff does not dispute Defendants recitation facts related the processing Plaintiffs FOIA request.  See Memorandum Support Defendants Motion for Summary Judgment (Defs Mem.) 2-3.  Nor does Plaintiff dispute the basic premise Defendants recitation facts related the records responsive Plaintiffs FOIA request.  See id.  Nor does Plaintiff dispute the basic premise Defendants recitation facts related the criminal investigation into alleged IRS misconduct.  See id.  Plaintiff only disputes the characterization Ms. Bossermans role the criminal investigation.  According the Committee Oversight and Government Reform the U.S. House Representatives, Ms. Bosserman is leading the [Department Justice] investigation.  See January 2014 Letter from Congressman Issa Attorney General Holder.1 http://oversight.house.gov/wp-content/uploads/2014/01/2014-01-08-DEI-Jordan-to-Holder-DOJ-IRS-tax-exempt-applicants.pdf 
III. Summary Judgment Standard.   
 FOIA generally requires complete disclosure requested agency information unless the information falls into one FOIAs nine clearly delineated exemptions. U.S.C.  552(b); see also Department the Air Force Rose, 425 U.S. 352, 360-61 (1976) (discussing the history and purpose FOIA and the structure FOIA exemptions). light FOIAs goal promoting agency disclosure, the exemptions are construed narrowly.  U.S. Department Justice Tax Analysts, 492 U.S. 136, 150-151 (1989).  [T]he strong presumption favor 
disclosure places the burden the agency justify the withholding any requested documents.  U.S. Department State Ray, 502 U.S. 164, 173 (1991). FOIA litigation, all litigation, summary judgment appropriate only when the pleadings and declarations demonstrate that there genuine issue material fact and that the moving party entitled judgment matter law.  Anderson Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Fed. Civ. 56(c). FOIA cases, agency decisions withhold disclose information under FOIA are reviewed novo.  Judicial Watch, Inc. U.S. Postal Service, 297 Supp. 252, 256 (D.D.C. 2004). reviewing motion for summary judgment under FOIA, the court must view the facts the light most favorable the requester.  Weisberg U.S. Department Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984).   
 For agency prevail claim exemption, may rely declarations 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 either contrary evidence the record nor evidence agency bad faith. Military Audit Project Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). addition, agency must demonstrate that, even where particular exemptions properly apply, all non-exempt material has been segregated and disclosed.  Sussman U.S. Marshals Service, 494 F.3d 1106, 1116 (D.C. Cir. 2007). segregability determination absolutely essential any FOIA decision.  See Summers U.S. Department Justice, 140 F.3d 1077, 1081 (D.C. Cir. 1998). 
IV. Defendant Improperly Withholding Time Records Their Entirety. support its motion for summary judgment, Defendant submitted the declaration Nelson Hermilla.  See generally Declaration Nelson Hermilla (Hermilla Decl.).  Mr. 
Hermilla, Chief the Freedom Information/Privacy Act Branch the Civil Rights Division, testifies: 
The responsive material consists electronic records detailing Ms. Bossermans work the IRS investigation, including specific dates she worked, the number hours she worked the investigation given date, and the type activity she performed. number entries the records contain notes describing how the time was spent.  These entries record Ms. Bossermans accounts the tasks she performed them, including notes about locations visited, persons consulted, staff briefs, and other case developments. 
 
Hermilla Decl.  10. addition, Mr. Hermilla testifies: 
Plaintiff requested records from the Civil Rights Divisions Interactive Case Management System (ICM).  The ICM system tracks the case-related activities the Divisions legal staff.  The system functions tool for senior management oversee the work the Division and report matter and case data all levels the Department provide for accountability and analyze the Divisions performance.  The Division designed the ICM system capture and report Division managers the level effort that attorneys and professionals dedicate investigations and case-related tasks. 
 
Hermilla Decl.   Based the only evidence submitted Defendant, Defendants greatly overreach arguing that the time records are protected the attorney work product doctrine, the law enforcement exemption, and the privacy exemptions.  Defendant also goes too far its argument that all information contained the time records are protected the deliberative process privilege.  Defendant simply fails satisfy its burden demonstrating that all the information contained the time records falls into one FOIAs clearly delineated exemptions. The attorney work product doctrine does  not apply time records. properly withhold the time records pursuant the attorney work product doctrine, Defendant must demonstrate that the records were prepared for the purpose assisting attorney preparing for litigation, and not for some other reason.  Alexander Federal Bureau Investigation, 192 F.R.D. 42, (D.D.C. 2000) (citing Athridge Aetna Casualty and Surety 
Company, 184 F.R.D. 200, 205 (D.D.C. 1998)); see also EEOC Lutheran Social Services, 186 F.3d 959, 968 (D.C. Cir. 1999); Judicial Watch, Inc. United States Department Homeland Sec., 926 Supp. 121, 138 (D.D.C. 2013).  Stated another way: 
The key inquiry under the work-product privilege whether [the withheld records] were prepared anticipation litigation, whether they would have been created essentially similar form irrespective the litigation. 
 
McKinley Federal Housing Finance Authority, 2011 U.S. Dist. LEXIS 157973, (D.D.C. Aug. 26, 2011) (quoting U.S. rel. Fago Mortgage Corporation, 242 F.R.D. 16, (D.D.C. 2007)). 
 Clearly the time records issue here are not protected the attorney work product doctrine.  According Mr. Hermilla, the records were generated connection with investigation.  Hermilla Decl.  15.  They were not created for the purpose assisting attorney preparing for litigation.  Alexander, 192 F.R.D. 46. addition, noted above, the records were created assist senior management track[ing] case-related activities the Divisions legal staff[,] oversee[ing] the work the Division[,] and report[ing] case data all levels the Department provide for accountability and analyze the Divisions performance.  Hermilla Decl.   Regardless whether the criminal investigation may ultimately lead criminal prosecutions (id.  15), the time records issue would still have been created.  The attorney work product doctrine simply does not apply the records responsive Plaintiffs FOIA request. The law enforcement exemption does not apply time records. 
 
 Exemption protects from disclosure records information compiled for law enforcement purposes, but only the extent that the production such records information would cause one six enumerated harms. U.S.C.  552(b)(7)(A)-(F).  Defendant therefore 
must first demonstrate that the time records were compiled for law enforcement purposes.  Pratt Webster, 673 F.2d 408, 416 (D.C. Cir. 1982); see also Shapiro U.S. Department Justice, 2014 U.S. Dist. LEXIS 31774, *45 (D.D.C. Mar. 12, 2014); Sinsheimer U.S. Department Homeland Security, 437 Supp. 50, (D.D.C. 2006).  Specifically, Defendant must describe how and under what circumstances the [time records] were compiled.  Jefferson U.S. Department Justice, 284 F.3d 172, 176-77, (D.C. Cir. 2002). this instance, Defendant fails provide any evidence whatsoever that the time records were compiled for law enforcement purposes. fact, the only evidence provided Defendant suggests the opposite. 
 Mr. Hermilla testifies, The records being withheld under Exemption 7(A) were generated connection with ongoing criminal investigation into alleged misconduct IRS officials.  Hermilla Decl.  (emphasis added). other words, the records were not created for law enforcement purposes.  Instead, they were created assist senior management track[ing] case-related activities the Divisions legal staff[,] oversee[ing] the work the Division[,] and report[ing] case data all levels the Department provide for accountability and analyze the Divisions performance.  Hermilla Decl.  Maydak U.S. Department Justice, the plaintiff sought records located the Inmate Central Records System, which was the system records routinely utilized collect and maintain information concerning the day-to-day activities and events occurring during the confinement inmate.  254 Supp. 23, (D.D.C. 2003).  The defendant asserted that the records were protected Exemption because Inmates Central Files are compiled for law enforcement purposes.  Id.  The Court concluded that the defendants conclusory statement did not satisfy the threshold law enforcement requirement.  Id. 
 The evidence submitted Defendant this case does not even rise the level evidence submitted Maydak.  Defendants lone declarant fails even parrot the language the exemption subsection.  Simply put, there evidence that the time records were compiled for law enforcement purposes. U.S.C.  552(b)(7).  The law enforcement exemption does not apply the records responsive Plaintiffs FOIA request. 
 Even the records were compiled for law enforcement purposes and not for managerial oversight reasons, Defendant fails provide any evidence that the release the time records could reasonably expected interfere with enforcement proceedings. U.S.C.  552(b)(7)(A).  Plaintiff solely seeks records detailing the number hours that Ms. Bosserman spent the criminal investigation into alleged IRS misconduct. does not seek the type activity she performed[,] notes describing how time was spent[,] accounts the tasks she performed them.  Hermilla Decl.  10.  Yet Mr. Hermilla does not even testify how the release the number hours that Ms. Bosserman spent the investigation could reasonably expected interfere with the investigation. addition, the release information such the type activity she performed[,] notes describing how time was spent[,] and/or accounts the tasks she performed them (Hermilla Decl.  10) could reasonably expected interfere with the investigation, Defendant should redact such information privileged even non-responsive. The privacy exemptions not apply time records. demonstrated above, Defendant fails provide any evidence whatsoever that the time records were compiled for law enforcement purposes.  Nevertheless, the extent that the Court finds that the records fall within the purview Exemption Defendant fails demonstrate that the release the records could reasonably expected constitute 
unwarranted invasion personal privacy.  U.S.C.  552(b)(7)(C).  Because the analyses under Exemptions and 7(C) are very similar, Defendant considers them together.  Therefore, Plaintiff also considers them together.  For clarity, Exemptions and collectively, will referred privacy exemptions.  Under the privacy exemptions, agency may only withhold responsive records individuals privacy interest outweighs the publics interest disclosure.  Nation Magazine U.S. Customs Service, F.3d 885, 893 (D.C. Cir. 1995). 
 Mr. Hermilla testifies that the release the time records 
would disclose information about [Ms. Bossermans] work performance that may result added scrutiny and unwarranted public assessment regarding the performance her duties.  The additional exposure would make [Ms. Bosserman] vulnerable annoyance and even harassment both her private and professional lives. could also invite speculation about more personal matters such medical family leave. 
 
Hermilla Decl.  18.  Again, Plaintiff only seeking records detailing the number hours that Ms. Bosserman spent the criminal investigation into alleged IRS misconduct.  Plaintiff not seeking records detailing the total numbers hours that Ms. Bosserman has worked, itemization the various projects which Ms. Bosserman has worked, records detailing when Ms. Bosserman has taken leave.  Simply put, the fears identified Mr. Hermilla are unfounded. anything, the additional scrutiny and unwarranted public assessment are direct result Defendants confirmation that Ms. Bosserman involved the criminal investigation.  Defs Mem. see also Hermilla Decl.  addition, the extent that Ms. Bosserman has privacy interest the number hours she spent the criminal investigation into alleged IRS misconduct, the public interest outweighs her privacy interest.  Nation Magazine, F.3d 893. mentioned above, according the Committee Oversight and Government Reform the U.S. House 
Representatives, Ms. Bosserman is leading the [Department Justice] investigation.  See January 2014 Letter from Congressman Issa Attorney General Holder. this fact true, the public has obvious interest the number hours Ms. Bosserman has expended the criminal investigation into alleged IRS misconduct.  Such information would shed light Defendants handling the investigation.  For all these reasons, the privacy exemptions not apply the time records issue this case.2 with the other claims, the extent that the Court finds that Ms. Bosserman has some privacy interest information such the type activity she performed[,] notes describing how time was spent[,] and/or accounts the tasks she performed them (Hermilla Decl.  10), Defendant can redact such information privileged even non-responsive. Not all the information contained time records 
  are protected the deliberative process privilege. 
 
The deliberative process privilege protects documents reflecting advisory opinions, recommendations and deliberations comprising part process which governmental decisions and policies are formulated.  U.S. Department Interior Klamath Water Users Protective Association, 532 U.S. (2001).  Its purpose protect the executive's deliberative processes  not protect specific materials.  Dudman Communications Corporation Department Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987).  For properly withhold the time records under the deliberative process privilege, Defendant must demonstrate that the records are both predecisional and deliberative.  Public Citizen, Inc. Office Management and Budget, 598 F.3d 865, 874 (D.C. Cir. 2010) (quoting Coastal States Gas Corporation U.S. Department Energy, 617 F.2d 854, 866, (D.C. Cir. 1980)). document deliberative reflect[s] the personal opinions the writer rather than the policy the agency.  Coastal States Gas, 617 F.2d 866. Defendants burden demonstrate the role the time records played the decisionmaking process.  Whitaker Central Intelligence 
Agency, 2014 U.S. Dist. LEXIS 30778, **31-32 (D.D.C. Mar. 10, 2014); see also Vaughn Rosen, 523 F.2d 1136, 1143-1144 (D.C. Cir. 1975) (To deliberative, the record must a direct part the deliberative process that makes recommendations expresses opinions legal policy matters. (emphasis added)). 
 Defendant fails demonstrate that the records detailing the number hours spent Ms. Bosserman are any way related the decisionmaking process related the criminal investigation into alleged IRS misconduct.  Defendant also cannot demonstrate that the time records played any role the decisionmaking process.  The records were created solely assist senior management track[ing] case-related activities the Divisions legal staff[,] oversee[ing] the work the Division[,] and report[ing] case data all levels the Department provide for accountability and analyze the Divisions performance.  Hermilla Decl.  the extent that the time records contain information such the type activity she performed[,] notes describing how time was spent[,] and/or accounts the tasks she performed them (Hermilla Decl.  10), would entirely appropriate for Defendant redact such information privileged even non-responsive.  Defendant however did not redact such information; withheld the records their entirety.  Because the time records must segregated and non-exempt information must disclosed (Sussman, 494 F.3d 1116), Defendants argument that the time records are being properly withheld their entirety pursuant the deliberative process privilege must fail. Camera Review the Time Records Appropriate. 
 Defendant has failed satisfy its statutory burden justify its withholding the time records.  However, the Court has the option conduct camera review. Juarez Department Justice, 518 F.3d 54, 59-60 (D.C. Cir. 2008); Allen Central Intelligence 
Agency, 636 F.2d 1287, 1298 (D.C. Cir. 1980) (Where the agency fails meet that burden, not uncommon event, the court may employ host procedures that will provide with sufficient information make its novo determination, including camera inspection.). addition, the D.C. Circuit has held, [I]n camera review may particularly appropriate when ... the agency affidavits are insufficiently detailed permit meaningful review exemption claims.  Quinon Federal Bureau Investigation, F.3d 1222, 1228 (D.C. Cir. 1996).  Because Defendant has insufficiently provided enough detail permit proper analysis its claims withholding, camera review the time records appropriate this case. 
VI. Conclusion. 
 For these reasons, Defendants Motion for Summary Judgment should denied, Plaintiffs Cross-Motion for Summary Judgment should granted, and Defendant should promptly produce the records responsive Plaintiffs FOIA request.   
Dated:  January 14, 2015    Respectfully submitted, 
       /s/  Michael Bekesha                                 
Michael Bekesha (D.C.  Bar No. 995749) 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington,  20024 
(202) 646-5172 
 
Counsel for Plaintiff THE UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT COLUMBIA 
 
JUDICIAL WATCH, INC., 
Plaintiff, Civil Action No. 14-01024 (BAH) 
U.S. DEPARTMENT 
JUSTICE, 
Defendant. 
 
PLAINTIFFS RESPONSE DEFENDANTS STATEMENT MATERIAL FACTS NOT DISPUTE AND PLAINTIFFS STATEMENT UNDISPUTED MATERIAL FACTS SUPPORT ITS CROSS-MOTION FOR SUMMARY JUDGMENT 
 
Plaintiff Judicial Watch, Inc., counsel and pursuant Local Civil Rule 7.1(h), respectfully submits this response Defendants Statement Material Facts Not Dispute and Plaintiffs Statement Undisputed Material Facts Support Its Cross-Motion for Partial Summary Judgment: Plaintiffs Response Defendants Statement Material Facts 
 Not Dispute. Undisputed. Undisputed. Disputed.  According the Committee Oversight and Government Reform the U.S. House Representatives, Ms. Bosserman is leading the [Department Justice] investigation.  See January 2014 Letter from Congressman Issa Attorney General Holder.1 Undisputed. http://oversight.house.gov/wp-content/uploads/2014/01/2014-01-08-DEI-Jordan-to-Holder-DOJ-IRS-tax-exempt-applicants.pdf Undisputed. Plaintiff lacks knowledge confirm deny this paragraph.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). Plaintiff lacks knowledge confirm deny this paragraph.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). undisputed that Defendant submitted the Declaration Nelson Hermilla.  The declaration speaks for itself.  Plaintiff disputes Defendants characterizations the declaration. 
II. Plaintiffs Statement Undisputed Material Facts  
 Support its Cross-Motion for Partial Summary Judgment. January 2014, Congressman Daryl Issa, behalf the Committee Oversight and Government Reform the U.S. House Representatives, sent Letter Attorney General Eric Holder, which stated, part, that Ms. Bosserman is leading the [Department Justice] investigation.  
Dated:  January 14, 2015    Respectfully submitted, 
       /s/  Michael Bekesha                                  
Michael Bekesha (D.C.  Bar No. 995749) 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington,  20024 
(202) 646-5172 
 
Counsel for Plaintiff THE UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT COLUMBIA 
 
JUDICIAL WATCH, INC., 
Plaintiff, Civil Action No. 14-01024 (BAH) 
U.S. DEPARTMENT 
JUSTICE, 
Defendant. 
 
[PROPOSED] ORDER 
 
Upon consideration Plaintiffs Opposition Defendants Motion for Summary Judgment and Plaintiffs Cross-Motion for Summary Judgment and the entire record herein, hereby ORDERED that: Defendants Motion for Summary Judgment denied; Plaintiffs Cross-Motion for Summary Judgment granted; and Defendant produce all non-exempt, responsive records Plaintiff. ORDERED. 
 
 
DATE:________________     _______________________________ 
The Hon. Beryl Howell, U.S.D.J.