United States District Court, N.D. Alabama, Southern Division
DAVID PRO'CTOR UNITED STATES DISTRICT JUDGE.
case is before the court on (1) Defendant's Motion for
Summary Judgment (Doc. # 18); (2) Plaintiff's Motion for
Vaughn Index, or Alternatively, In Camera Inspection (Doc. #
20); and (3) Plaintiff's Opposition to Motion for Summary
Judgment and Cross-Motion For Summary Judgment (Doc. # 22).
These Motions have been fully briefed. (Docs. # 21, 25, 26,
37 and 38).
case concerns a Freedom of Information Act
(“FOIA”) request that Plaintiff White Arnold
& Dowd, P.C. submitted to the Department of Justice's
Office of Professional Responsibility (“OPR”) on
behalf of Michael G. Hubbard. (Doc. # 1). Mr. Hubbard is the
former Speaker of the Alabama House of Representatives. On
October 20, 2014, following an investigation conducted by
Matt Hart of the Alabama Attorney General's office's
white collar crime division and special prosecutor Van Davis,
Hubbard was indicted on 23 counts relating to misusing his
office for personal gain and soliciting gifts from
lobbyists. In June 2016, Hubbard was convicted on 12
of the 23 felony ethics charges, including charges of
improperly soliciting benefits from lobbyists and voting in
favor of a measure that helped a company for which he
consulted. Prosecutors, including Hart, asserted that Hubbard
had abused the power of his office.
January 8, 2015, Plaintiff made the FOIA request at issue in
this case. (Doc. # 18-1 at 9). In that request, Plaintiff
sought disclosure of “any records concerning any
personal, personnel, or professional complaints made against
Matt Hart, who worked as an Assistant United States Attorney
(“AUSA”) before joining the Alabama Attorney
General's office.” (Doc. # 18-1 at 9; Doc. # 37-1
January 9, 2015, in response to Plaintiff's FOIA request,
OPR issued what is known as a Glomar
response under FOIA Exemptions 6 and 7(C),
neither confirming nor denying the existence of responsive
records. (Doc. # 18-1 at 2-3, 13; Doc. # 37-1 at 2). Agencies
commonly issue a Glomar response when “to
confirm or deny the existence of records . . . would cause
harm cognizable under a FOIA exemption.”
See Office of the Capital Collateral Counsel ex rel.
Mordenti v. DOJ, 331 F.3d 799, 801-02 n.3 (11th Cir.
March 16, 2015, the Department of Justice's Office of
Information Policy (“OIP”) received a letter from
Plaintiff appealing the response the January 8, 2015 FOIA
request. (Doc. # 12 at & 10; Doc. # 1-1 at 5-11). OIP had
not rendered a decision on Plaintiff's appeal regarding
its FOIA Request at the time Plaintiff filed its Complaint in
this action. (Doc. # 12 at & 11).
Relevant Undisputed Facts
January 8, 2015 FOIA Request to OPR, Plaintiff made the
Speaker Hubbard seeks records of the Department of Justice
concerning the personal files of Assistant Attorney General
Miles Matthew Hart (“Mr. Hart”). Mr. Hart has
served as an Assistant Attorney General in the U.S.
Attorney's Office for the Northern District of Alabama
under U.S. Attorneys Alice Martin and Joyce White Vance. Mr.
Hart is presently employed by the Attorney General for the
State of Alabama.
Specifically, Speaker Hubbard seeks all information
concerning any personal, personnel or professional complaint
against Mr. Hart in the possession or control of the U.S.
Attorney's Office for the Northern District of Alabama or
the U.S. Department of Justice.
(Doc. # 18-1 at 9; Doc. # 37-1 at 2).
response to Plaintiff's FOIA request, OPR refused to
confirm or deny the existence of any responsive records.
(Doc. # 18-1 ¶ 5; Doc. # 18-1 at 13-14; Doc. # 37-1 at
2). OPR explained that “[l]acking an individual's
consent, an official acknowledgment of an investigation, or
an overriding public interest, even to acknowledge the
existence of investigatory records pertaining to an
individual would constitute a clearly unwarranted invasion of
personal privacy pursuant to 5 U.S.C. § 552(b)(6) and
could reasonably be expected to constitute an unwarranted
invasion of personal privacy pursuant to 5 U.S.C. §
552(b)(7)(C).” (Doc. # 18-1 at 13-14; Doc. # 37-1 at
time of the request, Hart was a former Assistant United
States Attorney for the Northern District of Alabama. (Doc. #
18-1 ¶ 9). Hart had been a non-supervisory line
attorney. (Doc. # 37-1 at 3). And, at the time OPR issued its
Glomar response, OPR had not received consent from
Hart to disclose any responsive records, nor had DOJ
officially acknowledged any investigation of Hart. (Doc. #
37-1 at 2). Similarly there is no Rule 56 evidence that Hart
has at any time consented to OPR's release of any records
regarding his tenure as an AUSA. (Doc. # 37-1 at 3).
possesses any records responsive to Plaintiff's FOIA
request, they would exist in OPR's system of records that
is compiled for law enforcement purposes. (Doc. # 18-1 ¶
14) (“The records contained in OPR's system of
records have been compiled as part of OPR's
investigations of current and former DOJ employees who are
alleged to have committed specific acts of professional
misconduct which, if proved, could result in civil or
criminal penalties.”). OPR does not conduct an
investigation into every complaint (or even most complaints)
it receives from members of the public. (Doc. # 37-1 at 3).
context of Plaintiff's request, OPR considered the fact
that an AUSA may have been the subject of DOJ investigation
to be “likely to engender speculation, could stigmatize
him or her, and could subject him or her to harassment or
criticism.” (Doc. # 37-1 at 3). Therefore, OPR
considered Hart to have a substantial privacy interest in not
having OPR officially or publicly disclose whether he has
been the subject of a complaint, and OPR investigation, or
disciplinary action. (Doc. # 37-1 at 3). Further, because
Hart was a non-supervisory AUSA, OPR determined that any
documents (if they existed) would not shed light on
operations of DOJ and OPR.
argues that OPR has disclosed documents related to the
investigation of AUSAs before, and has submitted documents
relating to an investigation of AUSAs Salvador Perricone and
Jan Mann in support of that argument. However, both Perricone
and Mann were higher level employees than a non-supervisory
AUSA. Perricone was a Senior Litigation Counsel and the
USAO's training officer attorney. He was considered part
of USAO's senior management team. (Doc. # 37-1 at 4).
Mann was the First Assistant U.S. Attorney and Chief of the
USAO's Criminal Division. (Doc. # 37-1 at 4). Moreover,
Perricone and Mann have each publicly acknowledged that their
conduct was under investigation. (Doc. # 37-1 at 4-5). A
court order granting a motion for new trial which addressed
their conduct was extensively covered in the nationwide
media, and DOJ had officially acknowledged OPR's
investigation of them. (Id.). Therefore, OPR
concluded Perricone and Mann had “severely diminished
privacy interests.” (Doc. # 37-1 at 5).
also argues that OPR has disclosed an investigation into an
AUSA relating to the prosecution of former Senator Ted
Stevens. In support of this argument, Plaintiff has submitted
a redacted version of an OPR report of an investigation which
was released to the Chairman of the Senate Committee on the
Judiciary. (Doc. # 37-1 at 7). However, Plaintiff has
presented no evidence that DOJ authorized the Senate
Judiciary Committee to publicly disclose the report. (Doc. #
37-1 at 7). And, while OPR has officially acknowledged the
investigation into that matter, it had not, as of the date of
Ginae Barnett's Second Declaration, disclosed the report
in response to any FOIA request. (Doc. # 37-1 at 7).
Standard of Review
Federal Rule of Civil Procedure 56(c), summary judgment is
proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The party asking for
summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and
identifying those portions of the pleadings or filings that
it believes demonstrate the absence of a genuine issue of
material fact. Celotex, 477 U.S. at 323.
Once the moving party has met its burden, the Rule requires
the non-moving party to go beyond the ...