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White Arnold & Dowd P.C. v. Department of Justice

United States District Court, N.D. Alabama, Southern Division

June 2, 2017

WHITE ARNOLD & DOWD P.C., Plaintiff,



         This 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).[1]

         I. Background

         This 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.[2] 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.[3]

         On 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 at 2).

         On January 9, 2015, in response to Plaintiff's FOIA request, OPR issued what is known as a Glomar response[4] 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. 2003).

         On 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).

         II. Relevant Undisputed Facts[5]

         In its January 8, 2015 FOIA Request to OPR, Plaintiff made the following request:

Documents Requested
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).[6]

         In 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 2).

         At the 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).

         If OPR 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).

         In the 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.

         Plaintiff 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).

         Plaintiff 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).

         III. Standard of Review

         A. Summary Judgment

         Under 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 ...

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