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JW v DOJ Bosserman appeal 5271

JW v DOJ Bosserman appeal 5271

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USCA Case #15-5271
Document #1598867
Filed: 02/16/2016
[NOT YET SCHEDULED FOR ORAL ARGUMENT] THE UNITED STATES COURT APPEALS
FOR THE DISTRICT COLUMBIA CIRCUIT
_________
No. 15-5271
_________
JUDICIAL WATCH, INC.
Plaintiff-Appellant,
U.S. DEPARTMENT JUSTICE
Defendant-Appellee.
__________ APPEAL FROM THE U.S. DISTRICT COURT
FOR THE DISTRICT COLUMBIA
__________
BRIEF APPELLANT JUDICIAL WATCH, INC.
__________
Michael Bekesha
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff-Appellant
USCA Case #15-5271
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Filed: 02/16/2016
CERTIFICATE PARTIES, RULINGS,
AND RELATED CASES
Pursuant Cir. 28(a)(1), counsel provides the following information parties, rulings, and related cases:
(A)
Parties and Amici
The following parties, interveners, and amici curiae appeared, sought
appear, below:
Plaintiff:
Judicial Watch, Inc.
Defendant:
U.S. Department Justice
The following parties, interveners, and amici curiae are before this Court
appeal:
Plaintiff-Appellant:
Judicial Watch, Inc.
Defendant-Appellee:
U.S. Department Justice
(B)
Ruling under Review
The ruling under review the Opinion and Order the United States
District Court for the District Columbia (Howell, J.) issued July 31, 2015.
The ruling can found Joint Appendix pages 25-38 and published Judicial
Watch, Inc. U.S. Department Justice, 2015 U.S. Dist. LEXIS 99982 (D.D.C.
July 31, 2015).
USCA Case #15-5271
(C)
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Related Cases
Judicial Watch, Inc. does not believe that there are any related cases within
the meaning Local 28(a)(1)(C).
/s/ Michael Bekesha
USCA Case #15-5271
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TABLE CONTENTS
TABLE CONTENTS ............................................................................................i
TABLE AUTHORITIES ................................................................................... iii
GLOSSARY ABBREVIATIONS ......................................................................vi
JURISDICTIONAL STATEMENT ..........................................................................
STATEMENT THE ISSUES PRESENTED .......................................................
STATUTES ................................................................................................................
STATEMENT THE CASE ..................................................................................
STATEMENT FACTS ........................................................................................
The Department Investigation the
Internal Revenue Service .................................................................................
II.
Judicial Watch FOIA Request ......................................................................
III.
The Proceedings Below ...................................................................................
SUMMARY THE ARGUMENT ........................................................................
ARGUMENT .............................................................................................................
Standard Review..........................................................................................
II.
The Attorney Work Product Doctrine Does Not
Apply Records Created the Ordinary Course Business .......................................................................................................
III.
The Department Has Obligation Segregate
Responsive Information Not Protected the
Attorney Work Product Doctrine ..................................................................
USCA Case #15-5271
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IV.
The Department Improperly Withholding the Time
Records their Entirety Pursuant the Deliberative
Process Privilege ............................................................................................
The Department Improperly Withholding the Time
Records their Entirety Pursuant the Law Enforcement
Exemption ......................................................................................................
VI.
The Department Improperly Withholding the Time
Records their Entirety Pursuant the Privacy
Exemptions ....................................................................................................
CONCLUSION ........................................................................................................
CERTIFICATE COMPLIANCE .......................................................................
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Filed: 02/16/2016
TABLE AUTHORITIES
CASES
PAGE Coastal States Gas Corporation
U.S. Department Energy,
617 F.2d 854 (D.C. Cir. 1980).............................................................8, 14,
Dudman Communications Corporation
Department Air Force,
815 F.2d 1565 (D.C. Cir. 1987).....................................................................
Federal Trade Commission
Boehringer Ingelheim Pharmaceuticals, Inc.,
778 F.3d 142 (D.C. Cir. 2015)..................................................................... Sealed Case,
146 F.3d 881 (D.C. Cir. 1998).........................................................................
Jefferson U.S. Department Justice,
284 F.3d 172 (D.C. Cir. 2002)....................................................................... Judicial Watch, Inc. Department Justice,
432 F.3d 366 (D.C. Cir. 2005).................................................................12,
Linde Thomson Langworthy Kohn Van Dyke, P.C. RTC, F.3d 1508 (D.C. Cir. 1993) .............................................................
Maydak U.S. Dep Justice,
254 Supp. (D.D.C. 2003).................................................................
Nation Magazine U.S. Customs Service, F.3d 885 (D.C. Cir. 1995) .........................................................................
Public Citizen, Inc. Office Management
and Budget, 598 F.3d 865 (D.C. Cir. 2010) .................................................. Authorities upon which Plaintiff-Appellant chiefly relies are marked with
asterisks.
iii
USCA Case #15-5271
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Pratt Webster,
673 F.2d 408 (D.C. Cir. 1982).......................................................................
Sample Bureau Prisons,
466 F.3d 1086 (D.C. Cir. 2006).......................................................................
Sussman U.S. Marshals Service,
494 F.3d 1106 (D.C. Cir. 2007)....................................................................... Tax Analysts Internal Revenue Service,
117 F.3d 607 (D.C. Cir. 1997).....................................................10, 11, 12,
United States Deloitte LLP,
610 F.3d 129 (D.C. Cir. 2010)...................................................................
U.S. Department Interior Klamath
Water Users Protective Association,
532 U.S. (2001)...........................................................................................
Vaughn Rosen,
523 F.2d 1136 (D.C. Cir. 1975).....................................................................
STATUTES U.S.C. 552(a)(4)(B) ............................................................................................ U.S.C. 552(b) .................................................................................................... U.S.C. 552(b)(6) ................................................................................................ U.S.C. 552(b)(7) ................................................................................................ U.S.C. 552(b)(7)(A) ....................................................................................17, U.S.C. 552(b)(7)(C) ....................................................................................18, Authorities upon which Plaintiff-Appellant chiefly relies are marked with
asterisks.
USCA Case #15-5271
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Filed: 02/16/2016 U.S.C. 552(b)(7)(A)-(F) .................................................................................... U.S.C. 1291 ........................................................................................................ U.S.C. 1331 ........................................................................................................
OTHER AUTHORITIES
Fed. App. 4(a)(1)(B)..............................................................................................
Treasury Inspector General for Tax Administration,
Inappropriate Criteria Were used Identify
Tax-Exempt Applications for Review,
Reference Number 2013-10-053, May 14, 2013 ......................................... 3-4 Authorities upon which Plaintiff-Appellant chiefly relies are marked with
asterisks.
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Filed: 02/16/2016
GLOSSARY ABBREVIATIONS
Department
U.S. Department Justice
District Court
U.S. District Court for the District
Columbia
FOIA
Freedom Information Act
FSA
Field Service Advice Memorandum
ICM System
Interactive Case Management System
IRS
Internal Revenue Service
Joint Appendix
Judicial Watch
Judicial Watch, Inc.
Opinion
Memorandum Opinion U.S. District Judge
Beryl Howell
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JURISDICTIONAL STATEMENT
Jurisdiction the U.S. District Court for the District Columbia District Court was pursuant the Freedom Information Act, U.S.C.
552(a)(4)(B), and U.S.C. 1331, and this Court has jurisdiction over the appeal
pursuant U.S.C. 1291. The appeal timely because the District Court
entered its final judgment July 31, 2015 (Joint Appendix 39) and
pursuant Fed. App. 4(a)(1)(B), timely notice appeal was filed
September 25, 2015. 40.
STATEMENT THE ISSUES PRESENTED
Under the Freedom Information Act, may agency properly
withhold time records prepared the ordinary course business, not
anticipation litigation, pursuant the attorney work product doctrine?
Under the Freedom Information Act, does agency have
obligation segregate responsive information not protected the attorney work
product doctrine from non-responsive information protected the attorney work
product doctrine when the records containing such information were prepared
the ordinary course business, not anticipation litigation?
Under the Freedom Information Act, may agency properly
withhold records detailing the number hours spent agency attorney
particular investigation pursuant the deliberative process privilege?
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Under the Freedom Information Act, may agency properly
withhold records detailing the number hours spent agency attorney
particular investigation pursuant the law enforcement exemption?
Under the Freedom Information Act, may agency properly
withhold records detailing the number hours spent agency attorney
particular investigation pursuant the privacy exemptions?
STATUTES U.S.C. 552(b):
This section does not apply matters that are
(5)
inter-agency intra-agency memorandums letters which would not available law party other than agency litigation with
the agency;
(6)
personnel and medical files and similar files the disclosure which
would constitute clearly unwarranted invasion personal privacy;
(7)
records information compiled for law enforcement purposes, but
only the extent that the production such law enforcement records information
(A)
could reasonably expected interfere with enforcement
proceedings
(C)
could reasonably expected constitute unwarranted
invasion personal privacy
STATEMENT THE CASE issue this appeal whether the U.S. Department Justice Department improperly withholding records responsive Judicial Watch
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Freedom Information Act FOIA request. Judicial Watch seeks records
detailing the number hours that Barbara Bosserman, attorney the Civil
Rights Division, spent particular, high profile criminal investigation. Judicial
Watch 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. Bosserman notes about locations visited, persons consulted, staff
briefings, and other case developments. Judicial Watch solely seeks information
about the number hours Ms. Bosserman expended the criminal investigation.
Such information prepared the ordinary course business, not
anticipation litigation, and not used any decisionmaking processes for
law enforcement purposes. The Department withholding the records their
entirety pursuant the attorney work product doctrine, the deliberative process
privilege, the law enforcement exemption, and the privacy exemptions. Although
the Department claims are overly broad and not supported the evidence, the
District Court found that the Department properly withholding the records.
STATEMENT FACTS
The Department Investigation the Internal Revenue Service. audit released May 2013, the Treasury Inspector General for Tax
Administration found that the Internal Revenue Service IRS used
inappropriate criteria that identified for review Tea Party and other organizations
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applying for tax-exempt status based upon their names policy positions instead indications potential political campaign intervention. Treasury Inspector
General for Tax Administration, Inappropriate Criteria Were used
Identify Tax-Exempt Applications for Review, Reference Number 2013-10-053,
May 14, 2013. response, the Department launched criminal investigation into
whether IRS employees engaged potential criminal misconduct connection
with the IRS handling various organizations applications for tax-exempt
status. Memorandum Opinion U.S. District Judge Beryl Howell Opinion dated July 31, 2015, (JA 25). The investigation being
conducted career attorneys the Civil Rights Division and the Public Integrity
Section the Criminal Division. Id.
The Department has revealed that Barbara Bosserman, career attorney
the Civil Rights Division, one the attorneys involved conducting the
investigation. Id. 1-2 (JA 25-26). There remains factual dispute whether
Ms. Bosserman leading the investigation just one several Department
attorneys involved. Id. (JA 26). Because the District Court did not reach the
issue whether the records are properly being withheld pursuant the privacy
exemptions, was not required make factual finding with respect the
dispute. Id.
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II.
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Judicial Watch FOIA Request. February 25, 2014, Judicial Watch submitted FOIA request the
Department seeking access records detailing the number hours that Ms.
Bosserman spent the aforementioned criminal investigation. Id. Because the
Department failed respond Judicial Watch request within the statutory time
frame, Judicial Watch filed suit. Id.
After Judicial Watch filed suit, the Department searched for records
responsive Judicial Watch FOIA request. Id. The Department queried the
Interactive Case Management System ICM System for Ms. Bosserman time
records. Id. According the evidence submitted Defendant,
The ICM system tracks the case-related activities the Division
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 Division 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
Declaration Nelson Hermilla Hermilla Decl. (JA 14-15).
During the query the ICM System, the Department discovered records
responsive Plaintiff FOIA request. Opinion (JA 26). The records contain
the dates that Ms. Bosserman worked, the number hours she worked the
investigation given date, and the type activities she performed. Id. (JA
27). addition this information, certain records also contain the description
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activities that Ms. Bosserman performed, including notes about locations visited,
persons consulted, staff briefings, and other case developments. Id. The
Department subsequently informed Judicial Watch that was withholding all
responsive records their entirety pursuant the law enforcement and privacy
exemptions. Id.
III.
The Proceedings Below.
The Department moved for summary judgment asserting that was properly
withholding the records responsive Judicial Watch FOIA request. Opinion (JA 30). addition asserting the law enforcement and privacy exemptions,
the Department also invoked the attorney work product doctrine and the
deliberative process privilege withhold the records their entirety. Id. Judicial
Watch opposed the motion and simultaneously cross-moved for summary
judgment. Id. (JA 27). The District Court granted the Department motion for
summary judgment and denied Judicial Watch cross-motion. Id. (JA 25).
The District Court specifically found that the Department was properly
withholding the time records under the attorney work product doctrine. Id.
(JA 30). Because this finding, the District Court did not address whether the
Department was properly withholding the responsive records pursuant the
deliberative process privilege, the law enforcement exemption, and the privacy
exemptions. Id.
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SUMMARY THE ARGUMENT
The Department improperly withholding the responsive time records
their entirety. The Department claims withholding the records under the
attorney work product doctrine, the deliberative process privilege, the law
enforcement exemption, and the privacy exemptions. However, the only evidence
submitted the Department demonstrates that the records were not created
anticipation litigation, assist any decisionmaking process, for law
enforcement purposes. The records issue were created exclusively allow
senior management the Department oversee the agency work, report
matter and case data, and provide for accountability and analyze performance
the agency and its employees. The records therefore are being improperly
withheld their entirety. minimum, the Department should required
segregate all information about the number hours that Ms. Bosserman expended the investigation from information that may protected the attorney work
product doctrine, the deliberative process privilege, and the law enforcement
exemption. addition, the extent that the privacy exemptions apply the
specific information requested Judicial Watch, the public interest the number hours that Ms. Bosserman spent the criminal investigation into alleged IRS
misconduct outweighs any minimal privacy interest she may have. The District
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Court ruling therefore should reversed, and the case should remanded for
further proceedings.
ARGUMENT
Standard Review. FOIA cases, District Court decisions are reviewed novo. Sussman
U.S. Marshals Service, 494 F.3d 1106, 1111-12 (D.C. Cir. 2007) (citing Sample
Bureau Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006)).
II.
The Attorney Work Product Doctrine Does Not Apply
Records Created the Ordinary Course Business.
The law clear. The attorney work product doctrine limited
documents prepared contemplation litigation. Coastal States Gas
Corporation U.S. Department Energy, 617 F.2d 854, 864 (D.C. Cir. 1980).
addition, this Court has stated, not all work undertaken lawyers finds
protection the work-product privilege. Sealed Case, 146 F.3d 881, 887
(D.C. Cir. 1998). The attorney work product doctrine has applicability
documents prepared lawyers the ordinary course business for other
nonlitigation purposes. Id. 887 (quoting Linde Thomson Langworthy Kohn
Van Dyke, P.C. RTC, F.3d 1508, 1515 (D.C. Cir. 1993)). Further, [w]here
document would have been created substantially similar form regardless the
litigation, work product protection not available. Federal Trade Commission
Boehringer Ingelheim Pharmaceuticals, Inc., 778 F.3d 142, 149 (D.C. Cir. 2015).
USCA Case #15-5271
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Filed: 02/16/2016 record can also contain material protected the attorney work product doctrine
even though serves multiple purposes the protected material was prepared
because the prospect litigation. United States Deloitte LLP, 610 F.3d 129,
138 (D.C. Cir. 2010). this case, the evidence plainly demonstrates that Ms. Bosserman time
records were not created because the prospect litigation. Id. They were
prepared the ordinary course business. Mr. Hermilla testified, the records
were created assist senior management track[ing] case-related activities
the Division legal staff[,] oversee[ing] the work the Division[,] and
report[ing] case data all levels the Department provide for accountability
and analyze the Division performance. Hermilla Decl. (JA 14-15). The
records responsive Judicial Watch FOIA request would have been created
substantially similar form regardless the criminal investigation. Boehringer
Ingelheim Pharmaceuticals, 778 F.3d 142. The time records were created solely
for managerial oversight reasons.
Importantly, the District Court agreed. The court concluded that the records whole were not prepared anticipation litigation. Opinion 10-13 (JA
34-37). Instead, the court concluded that some the information contained the
records may protected the attorney work product doctrine. Although
Plaintiff does not concede that the portions Ms. Bosserman time records
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detailing the locations visited, persons contacted, staff briefings, and other case
developments are protected from disclosure attorney work product (Opinion (JA 37)), Plaintiff does not seek nor has ever sought such information.
Plaintiff asserts that the extent such information protected, may redacted. short, the Department presented evidence whatsoever that the records
requested Judicial Watch were created anticipation litigation. The District
Court also did not make such finding. Instead the Department argued and the
court ruled that some the information contained the responsive records was
protected the attorney work product doctrine. Because the requested records
were created the ordinary course business assist senior officials their
management responsibilities the records not fall within the scope the
attorney work product doctrine. The records are being improperly withheld their
entirety.
III.
The Department Has Obligation Segregate Responsive
Information Not Protected the Attorney Work Product Doctrine.
Because the time records themselves are not protected the attorney work
product doctrine, the Department has obligation segregate all information not
protected the attorney work product doctrine. See U.S.C. 552(b) Any
reasonably segregable portion record shall provided any person
requesting such record after deletion the portions which are exempt under this
subsection. (emphasis added)). Tax Analysts Internal Revenue Service, the
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plaintiff sent FOIA request seeking certain Field Service Advice Memoranda FSA issued the IRS chief counsel. 117 F.3d 607, 608 (D.C. Cir. 1997).
After conducting search and review potentially responsive records, the IRS
withheld 309 FSAs pursuant the attorney work product doctrine. Id. 620.
Contrary the actions the IRS and the ruling the District Court, this Court
ultimately determined that parts the 309 FSAs may withheld pursuant the
attorney work product doctrine. Id. FSA prepared attorney the national office the Office the
Chief Counsel response requests from field personnel. Id. 609. The FSA
provides legal guidance, usually with reference specific taxpayer, and includes statement issues, conclusions section, statement facts, and legal
analysis section. Id. The analysis section exploratory and descriptive that
the strengths and weaknesses case are presented and developed candidly. Id.
(internal citations omitted). The primary purpose the FSA ensure that
field personnel apply the law correctly and uniformly. Id. Based this
description the FSAs, the Court concluded that the attorney work product
doctrine did not apply all the requested records. Id. 620 [N]o blanket
exemption applies all the requested FSAs. The Court also determined,
Any part FSA prepared anticipation litigation, not just the portions
concerning opinions, legal theories, and the like, protected the work product
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doctrine and falls under Exemption Id. The IRS was required segregate
from the FSAs the information prepared anticipation litigation from the
information prepared the ordinary course business. issue Judicial Watch, Inc. U.S. Department Justice was nine
emails between Department officials containing discussions about whether [the
Department] should file amicus brief the Boim litigation and what the
Department position should such brief were filed. 432 F.3d 366, 367
(D.C. Cir. 2005). After reviewing the records camera, this Court concluded:
Having reviewed these documents camera, agree and affirm the
District Courts judgment that the documents are attorney work
product. also note that the District Court never suggested that any the documents were only partially work product. Our review the
documents confirms this. Each the nine documents, its entirety, work product. There are non-work product parts the e-mails. other words, there are segregable parts. light these
findings, reverse the judgment the District Court compelling the
Government provide Judicial Watch with reasonably segregable
portions each document.
Id. 370. The Court determined that each the emails themselves were prepared anticipation litigation and therefore fell within the scope the attorney work
product doctrine. The Court also held that because the records themselves were
protected the attorney work product doctrine, there was information that
could segregated. Nonetheless, had the records not been prepared
anticipation litigation and therefore could have also contained non-attorney
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work product information, such information would have been required
disclosed.1
The attorney time records issue the instant matter are fundamentally
different than the emails issue Judicial Watch. The time records themselves
were not prepared anticipation litigation and are not entirely protected the
attorney work product doctrine. Instead, they are records that contain some
information that may protected the attorney work product doctrine. The time
records therefore are more akin the FSAs. Non-attorney work product
information can and must segregated from information being properly withheld.
The District Court misapplied Tax Analysts and Judicial Watch. The court
stated, Since the descriptions contained the time records are fully protected
work product, segregability not required. Opinion (JA 37) (quoting
Judicial Watch, 432 F.3d 371; Tax Analysts, 117 F.3d 620). However, this the non-FOIA context, this Court also recently differentiated between
records that are entirely protected the attorney work product doctrine and
records that merely contain attorney work product information. Deloitte LLP,
the government sought the civil discovery context memorandum prepared independent auditor. 610 F.3d 133. The District Court upheld Deloitte
refusal disclose the memorandum because was prepared because the
prospect litigation with the IRS. Id. 134. This Court however concluded
that the lower court did not have sufficient evidentiary foundation for its holding
that the memorandum was purely work product. Id. 138 (emphasis added).
The case therefore was remanded that the District Court could examine the
document camera determine whether entirely work product and also
determine whether partial redacted version the document could have been
disclosed. Id. 139.
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Court does not require segregability the record itself entirely protected the
attorney work product doctrine, not part the record fully protected work
product. Opinion (JA 37). Because the Court found that only the part the
time records that described the type activities she performed (Id.) not
attorney work product, the Department should required redact that
information and produce the responsive records with the dates that Ms.
Bosserman worked and the number hours she worked the investigation given date. Id.
IV.
The Department Improperly Withholding the Time Records their Entirety Pursuant 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 deliberative processes not protect
specific materials. Dudman Communications Corporation Department Air
Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987). For agency properly withhold
records under the deliberative process privilege, 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.
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Cir. 1980)). document deliberative reflect[s] the personal opinions the
writer rather than the policy the agency. Coastal States Gas, 617 F.2d 866. the agency burden demonstrate the role the records played the
decisionmaking process. Vaughn Rosen, 523 F.2d 1136, 1143-1144 (D.C. Cir.
1975) (To deliberative, the record must direct part the deliberative
process that makes recommendations expresses opinions legal
policy matters.
The Department fails demonstrate that the records detailing the number
hours spent Ms. Bosserman are any way related the decisionmaking
process concerning the criminal investigation into alleged IRS misconduct. The
Department 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 Division legal staff[,]
oversee[ing] the work the Division[,] and report[ing] case data all levels
the Department provide for accountability and analyze the Division
performance. Hermilla Decl. (JA 14-15). 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) (JA 15), would entirely appropriate for the
Department redact such information privileged even non-responsive.
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The Department however did not redact such information; withheld the records their entirety. Because the time records must segregated and non-exempt
information must disclosed, the Department argument that the time records
are properly being withheld their entirety pursuant the deliberative process
privilege must fail.
The Department Improperly Withholding the Time Records Their Entirety Pursuant the Law Enforcement Exemption.
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). The Department 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). Specifically, the Department 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,
the Department fails provide any evidence whatsoever that the time records
were compiled for law enforcement purposes. fact, the only evidence provided the Department suggests the opposite.
Mr. Hermilla testified, The records being withheld under Exemption 7(A)
were generated connection with ongoing criminal investigation into alleged
misconduct IRS officials. Hermilla Decl. (JA 16). The records were
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not created for law enforcement purposes. They were created assist senior
management track[ing] case-related activities the Division legal staff[,]
oversee[ing] the work the Division[,] and report[ing] case data all levels
the Department provide for accountability and analyze the Division
performance. Hermilla Decl. (JA 14-15). 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 agency asserted that the records were protected
Exemption because Inmates Central Files are compiled for law enforcement
purposes. Id. The District Court concluded that the defendant conclusory
statement did not satisfy the threshold law enforcement requirement. Id.
The evidence submitted the Department the instant matter does not
even rise the level evidence submitted Maydak. The Department 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 Judicial Watch FOIA request.
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Even the records were compiled for law enforcement purposes and not for
managerial oversight reasons, the Department fails provide any evidence
whatsoever that the release the time records could reasonably expected
interfere with enforcement proceedings. U.S.C. 552(b)(7)(A). Judicial Watch
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. (JA 15).
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) (JA
15) could reasonably expected interfere with the investigation, the
Department should redact such information privileged even nonresponsive. The Department improperly withholding the time records their
entirety pursuant the law enforcement exemption.
VI.
The Department Improperly Withholding the Time Records Their Entirety Pursuant the Privacy Exemptions. demonstrated above, the Department has failed provide any evidence
whatsoever that the time records were compiled for law enforcement purposes.
USCA Case #15-5271
Document #1598867
Filed: 02/16/2016
Nonetheless, the extent that the records fall within the scope 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,
Judicial Watch will address them one and will simply refer them the
privacy exemptions. Under the privacy exemptions, agency may only
withhold responsive records individual privacy interest outweighs the
public interest disclosure. Nation Magazine U.S. Customs Service, F.3d
885, 893 (D.C. Cir. 1995).
Mr. Hermilla testified that the release the time records
would disclose information about [Ms. Bosserman 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. (JA 17-18). Judicial Watch only seeking records detailing
the number hours that Ms. Bosserman spent the criminal investigation into
alleged IRS misconduct. 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 the Department are unfounded.
USCA Case #15-5271
Document #1598867
Filed: 02/16/2016
anything, the additional scrutiny and unwarranted public assessment are direct
result the Department confirmation that Ms. Bosserman involved the
criminal investigation. Opinion (JA 26); see also Hermilla Decl. (JA
13). 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. According the Committee Oversight and Government
Reform the U.S. House Representatives, Ms. Bosserman 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 Defendant 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 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) (JA 15), the Department can redact such
information privileged even non-responsive.
USCA Case #15-5271
Document #1598867
Filed: 02/16/2016
CONCLUSION
For the foregoing reasons, Judicial Watch respectfully requests that this
Court reverse the District Court order granting the Department motion for
summary judgment and denying Judicial Watch cross-motion for summary
judgment and remand for further proceedings.
Dated: February 16, 2016
Respectfully submitted,
/s/ Michael Bekesha
Michael Bekesha
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff-Appellant
USCA Case #15-5271
Document #1598867
Filed: 02/16/2016
CERTIFICATE COMPLIANCE
The undersigned certifies that this brief complies with the type-volume
limitations Fed. App. 32(a)(7). The brief, excluding exempted portions,
contains 4913 words (using Microsoft Word 2010), and has been prepared
proportional Times New Roman, 14-point font.
/s/ Michael Bekesha
USCA Case #15-5271
Document #1598867
Filed: 02/16/2016
CERTIFICATE SERVICE hereby certify that February 16, 2016, filed via the CM/ECF system
the foregoing BRIEF APPELLANT JUDICIAL WATCH, INC. with the
Clerk the Court. Participants the case are registered CM/ECF users and
service will accomplished the Appellate CM/ECF system. also certify that caused eight copies delivered the Clerk Court
via hand delivery.
/s/ Michael Bekesha