# Mullane v. Department of Justice

> District Court, D. Massachusetts · March 19, 2021

URL: https://www.frixlaw.com/law-library/cases/10199348

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** March 19, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10199348

## How later opinions describe it (automated extraction)

- noting that agency must identify the specific decision being deliberated
- finding occurrence of one- year delay in processing FOIA request does not “impugn[] the adequacy or reasonableness” of the search
- finding index descriptions insufficient because specific policies “never identified or described”

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
JONATHAN MULLANE, )
)
Plaintiff, )
)
v. )
) Case No. 19-cv-12379-DJC
UNITED STATES DEPARTMENT OF )
JUSTICE and UNITED STATES )
SECURITIES AND EXCHANGE )
COMMISSION, )
)
Defendants. )
__________________________________________)

MEMORANDUM AND ORDER

CASPER, J. March 19, 2021

I. Introduction

Plaintiff Jonathan Mullane (“Mullane”) brings this action under the Privacy Act (“Privacy
Act”), 5 U.S.C. § 552a, (Count I) and Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,
(Count II), against the United States Department of Justice (“DOJ”) and the United States
Securities and Exchange Commission (“SEC”) (collectively, the “Agencies”). Mullane claims
that the Agencies failed to conduct adequate searches in response to his FOIA/Privacy Act requests
and improperly redacted or withheld responsive documents. D. 1. The Agencies now have moved
for summary judgment. D. 27. Mullane moved to amend his complaint, D. 53, and to strike
submissions in support of the Agencies’ reply to his opposition, D. 58. For the reasons discussed
below, the Agencies’ motion for summary judgment is ALLOWED in part and DENIED in part,
and Mullane’s motions to strike and amend are DENIED.
II. Standard of Review

The Court grants summary judgment where there is no genuine dispute as to any material
fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a). “A fact is material if it carries with it the potential to affect the
outcome of the suit under applicable law.” Santiago–Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 52 (1st Cir. 2000). The movant bears the burden of demonstrating the absence of a
genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex
v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets its burden, the non-moving party may
not rest on the allegations or denials in its pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986), but must come forward with specific admissible facts showing that there is a
genuine issue for trial. Borges ex rel. S.M.B.W. v. Serrano–Isern, 605 F.3d 1, 5 (1st Cir. 2010).
The Court “view[s] the record in the light most favorable to the nonmovant, drawing reasonable
inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).
Summary judgment is warranted to an agency in a FOIA case “when the agency proves

that it has fully discharged its obligations under the FOIA after the underlying facts and the
inferences to be drawn from them are construed in the light most favorable to the FOIA requester.”
Crooker v. Tax Div. of U.S. Dep’t of Just., No. 94–30129–MAP, 1995 WL 783236, at *7 (D.
Mass. Nov. 17, 1995) (internal quotations omitted) (citing Gordon v. Thornberg, 790 F. Supp. 374,
378 (D.R.I. 1992)). An agency discharges its burden when it “proves that each document that falls
within the class requested either has been produced, is unidentifiable, or is wholly exempt from
the FOIA’s inspection requirements.” Crooker, 1995 WL 783236, at *7 (internal quotations
omitted) (quoting Gillen v. I.R.S., 980 F.2d 819, 821 (1st Cir. 1992)). Summary judgment in FOIA
cases “may be granted solely on the basis of agency affidavits.” Crooker, 1995 WL 783236, at
*10 (citing Gardels v. C.I.A., 689 F.2d 1100, 1104–05 (D.C. Cir. 1982); Hemenway v. Hughes,
601 F. Supp. 1002, 1004 (D.D.C. 1985)).
III. Factual Background
The following facts are drawn from the Agencies’ submissions of material facts and
documents referenced therein, D. 28, and Mullane’s response to same, D. 46, and are undisputed

unless otherwise noted.1
A. DOJ Request
On October 14, 2018, Mullane submitted a FOIA/Privacy Act request to DOJ, which the
Executive Office of the United States Attorney (“EOUSA”) received on October 23, 2018. D. 28
¶¶ 1–2, 4, 9–10. Mullane requested records from the U.S. Attorney’s Office for the Southern
District of Florida (“USAO-SDFL”), where he was a law student intern, seeking “any and all
records and information in the possession of the United States Department of Justice pertaining to
Jonathan Mullane . . . [and] any and all information in connection with [Mullane’s] employment
at the United States Attorney's Office in Miami, Florida[,] between the months of January 2018

and April 2018. This includes, but is in no way limited to, [Mullane’s] employee and/or personnel

1 Mullane denies much of the Agencies’ statement of undisputed material fact, particularly the
timelines and descriptions of the Agencies’ searches, D. 46 at 2–3, 10, but in many instances
provides no factual basis for doing so or denies a factual assertion for lack of personal knowledge.
See, e.g., D. 46 ¶¶ 4–6, 13–16, 24–30, 37–38, 40–45. A statement opposing the moving party’s
submission must contain “references to affidavits, depositions and other documentation,”
otherwise it does not comply with the Local Rules and a court may, in its discretion, deem these
facts admitted. See Butters v. Wells Fargo Advisors, 10-cv-10072-MLW, 2012 WL 5959986, at
*1–2 (D. Mass. Nov. 27, 2012) (quoting Local Rule 56.1). Mullane also cannot “create a genuine
issue of fact by denying statements, which the moving party contends are undisputed and supported
by sufficient evidence, on the basis that he lacks knowledge and information to admit or deny the
statement.” Chapman v. Finnegan, 950 F. Supp. 2d 285, 291 n.3 (D. Mass. 2013). To the extent
the Agencies’ statements summarize sworn affidavits that describe their search processes, and
Mullane has denied same without a factual basis or for lack of personal knowledge, the Court
considers these statements admitted.
file.” Id. ¶¶ 9–10. On October 31, 2018, EOUSA sent Mullane a letter acknowledging receipt of
his request, assigned it a control number, and informed Mullane that his request was determined
to be “complex” and would “necessarily take longer” than ordinary requests. Id. ¶ 11; D. 28-2 at
85. That same day, EOUSA asked USAO-SDFL to conduct a search of material responsive to
Mullane’s request. D. 28 ¶¶ 11–12. On January 8, 2020, USAO-SDFL sent an office-wide email

to all personnel regarding Mullane’s request and asked them to inform the FOIA coordinator if
they had records “regarding Jonathan Mullane, including any/all records in the possession of the
USAO-Miami, but not limited to his employment or personnel records, between the months of
January 2018 and April 2018.” Id. ¶ 3. USAO-SDFL collected responsive records and uploaded
them on January 21, 2020, to EOUSA’s FOIA system for review by EOUSA staff. Id. ¶¶ 5, 13.
EOUSA made several productions of responsive documents to Mullane. On April 29,
2020, EOUSA emailed Mullane 645 pages unredacted and twenty pages redacted, citing FOIA
exemption 5. D. 28 ¶ 14–15, 17–18.2 On June 2, 2020, EOUSA emailed Mullane 3,246 pages
unredacted, 350 pages redacted, and withholding 88 pages, citing FOIA Exemptions 5 and 6. Id.

¶ 19. On June 10, 2020, EOUSA emailed Mullane six pages unredacted and seven pages redacted,
citing FOIA Exemption 5. Id. ¶ 21. In total, EOUSA transmitted 3,897 pages unredacted, 377
pages redacted and withheld 88 pages. Id.

2 EOUSA sent response letters in February and March referencing their production of batches of
these documents to Mullane via email; however, EOUSA claims it incorrectly entered Mullane’s
email address such that the first two productions were never received. Mullane disputes this
account. D. 28 ¶ 16; D. 28-2 at 4, 87, 89; D. 46 at 4. EOUSA re-sent Mullane the first two batches
of documents with a subsequent production, D. 28 ¶¶ 14–15, 17, and the parties do not dispute that
Mullane received these documents with the subsequent production on April 29, 2020. D. 46 at 5.
B. SEC Request
On October 14, 2018, Mullane submitted an expedited FOIA/Privacy Act request to the
SEC’s FOIA Office in Washington, D.C., for “any and all records and information in the
possession of the United States Securities and Exchange Commission . . . pertaining to Jonathan
Mullane” and “any and all information in connection with [his] offer of employment for an

internship in the SEC’s Miami, Florida office, together with the subsequent rescission thereof.”
Id. ¶ 46. The SEC denied Mullane’s request to expedite, Mullane appealed that denial and the
SEC’s Office of the General Counsel denied the appeal. Id. ¶¶ 47–48.
The SEC searched for responsive documents in its Office of Human Resources shared
drive, including Mullane’s internship application, and located 81 pages of documents. Id. ¶ 49.
The SEC initially produced twenty-seven pages unredacted, six pages redacted and withheld forty-
eight pages. Id. ¶¶ 50–52. The withheld pages were eventually produced in redacted form and the
only redactions were of personal information pursuant to FOIA Exemption 6. Id. ¶ 51. SEC’s
Miami Office, where Mullane was set to intern, searched for responsive emails, and identified 241

pages, which were redacted only for personal information pursuant to FOIA Exemption 6. D. 57-
3 at 2.
IV. Procedural History
Mullane initiated this case on November 19, 2019, alleging that the Agencies failed to
conduct an adequate search and improperly withheld documents under FOIA and the Privacy Act.
D. 1. Mullane moved to amend his complaint, D. 23, which the Court denied, D. 35. The Agencies
have now moved for summary judgment. D. 27. Mullane again has moved to amend his
complaint, D. 53, and to strike supplemental affidavits and a statement of facts submitted with the
Agencies’ reply to his opposition. D. 58. The Court heard the parties on the pending motions and
took the matters under advisement. D. 61.
V. Discussion
A. Motion for Summary Judgment
1. Adequacy of Search

a) Legal Standard
In FOIA and Privacy Act cases, an agency must establish that it has “made a good faith
effort to conduct a search for the requested records, using methods which can be reasonably
expected to produce the information requested.” Oleskey v. U.S. Dep’t of Def., 658 F. Supp. 2d
288, 294 (D. Mass. 2009) (quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir.
1990)); Chambers v. U.S. Dep’t of Interior, 568 F.3d 998, 1003, 1005 (D.C. Cir. 2009) (applying
FOIA adequacy of search standard to Privacy Act). “The crucial issue is not whether relevant
documents might exist, but whether the agency’s search was reasonably calculated to discover the
requested documents.” Maynard v. C.I.A., 986 F.2d 547, 559 (1st Cir. 1993) (quoting Safecard

Servs., Inc. v. S.E.C., 926 F.2d 1197, 1201 (D.C. Cir. 1991)). Even if a plaintiff is correct that
additional responsive records exist, an agency’s failure to locate them “does not ipso facto render
its search inadequate.” Oleskey, 658 F. Supp. 2d at 298. A “failure to turn up [a requested]
document does not alone render the [agency’s] search inadequate; there is no requirement that an
agency produce all responsive documents.” Nation Magazine, Washington Bureau v. U.S.
Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir. 1995). The focus of the adequacy inquiry is thus
not on the results, but rather on the search itself. Oleskey, 658 F. Supp. 2d at 298.
To demonstrate that an agency conducted an adequate search, the agency “may rely upon
affidavits provided they are relatively detailed and nonconclusory, and are submitted by
responsible agency officials in good faith.” Maynard, 986 F.2d at 559. Sufficient affidavits may
include “the search terms and the type of search performed, and averring that all files likely to
contain responsive materials (if such records exist) were searched.” Oglesby, 920 F.2d at 68
(citation omitted). Additional search details may include “the structure of the agency’s file system,
the scope of the search performed, and the method by which it was conducted.” Sephton v. F.B.I.,

365 F. Supp. 2d 91, 97 (D. Mass. 2005), aff’d, 442 F.3d 27 (1st Cir. 2006)).
Once an agency has produced such showing, a court must afford the government a
presumption of good faith, and “the burden shifts to the requester to ‘provide countervailing
evidence as to the adequacy of the agency’s search.’” Oleskey, 658 F. Supp. 2d at 294–95 (quoting
Iturralde v. Comptroller of Currency, 315 F.3d 311, 313–14 (D.C. Cir. 2003)). If the requester
introduces evidence that “raises substantial doubt, particularly in view of well defined requests
and positive indications of overlooked materials, summary judgment is inappropriate.” Iturralde,
315 F.3d at 314 (citations and quotation omitted).
b) Agencies’ Search

The DOJ relies upon the affidavits of Francys Marcenaros (“Marcenaros”), the FOIA
paralegal specialist for USAO-SDFL, who conducted the search pursuant to Mullane’s request.
Marcenaros’ search consisted of (1) “sen[ding] an officewide email to all [USAO-SDFL]
personnel” asking if they had records “regarding Jonathan Mullane, including any/all records in
the possession of the USAO-Miami, but not limited to his employment or personnel records,
between the months of January 2018 and April 2018”; (2) emailing the attorneys who run the
internship program, the human resources department and the leadership of the Asset Forfeiture
Division (where Mullane was assigned as an intern) requesting any responsive records; and (3)
requesting responsive emails between the former U.S. Attorney Benjamin Greenberg
(“Greenberg”) and Judge Federico Moreno (“Judge Moreno”) pertaining to Mullane. D. 28-1 ¶¶
6–7; D. 57-1 ¶ 5. Marcenaros determined the scope of the search, “any records including the term
‘Mullane,’” based on this outreach and the fact that Mullane was a student intern at USAO-SDFL
for a few months, where Mullane had contact with a “very limited number of individuals,” and she
was further advised that responsive records would likely be found in emails. D. 57-1 ¶¶ 5, 7–8.

Common terms like “law clerk” and “intern,” as well as the term “Moreno” (who was then-Chief
Judge in the Southern District of Florida) were not searched because Marcenaros determined
“[s]earches for these extremely common terms would have yielded an overwhelming number of
hits . . . in light of [Mullane’s] targeted request for documents concerning himself.” Id. ¶ 6.
Marcenaros also “searched for and found a file in [the] Human Resources Department associated”
with Mullane’s internship. Id. ¶ 10.
The Marcenaros affidavit specifies the type of search performed, a request for records from
the entire office with targeted follow-up emails sent to those who worked closely or interacted
with Mullane, as well as the search terms and other parameters used, any record “regarding

Jonathan Mullane” during the period of his internship. D. 28-1 ¶¶ 6–7; D. 57-1 ¶ 5. Marcenaros
also states, and the Court agrees given the nature of Mullane’s limited contact with the office as
an unpaid student intern, that her search “was reasonably calculated to uncover and identify all
records potentially responsive to” Mullane’s request. D. 28-1 ¶ 12; D. 57-1 ¶ 7; see Oglesby, 920
F.2d at 68. With respect to communications between Judge Moreno and USAO-SDFL mentioning
Mullane, particularly between Greenberg and Judge Moreno, Marcenaros states that such records
would have been covered by the initial search conducted by all personnel using the term “Mullane”
as well as an additional search of Greenberg’s records (who no longer worked at USAO-SDFL).
D. 57-1 ¶ 8.
The SEC relies upon the affidavits of Ray McInerney (“McInerney”), a FOIA Officer at
the SEC. D. 28-3 ¶ 1; D. 57-3 ¶ 1. SEC’s search consisted of SEC’s Office of Human Resources
locating documents using the term “Mullane” in a shared folder that “contains all documents,
including emails, with any substantive information relating to an application, other than the initial
application.” D. 57-3 ¶ 3; D. 28-3 ¶ 6. The SEC subsequently searched the emails of custodians

in the Miami regional office of the SEC likely to have had contact with Mullane and used the
search term “Mullane.” D. 57-3 ¶ 4.
Like the Marcenaros affidavit, the McInerney affidavit specifies the search terms,
“Mullane,” and locations where the searches occurred, email custodians likely to have
communicated with Mullane and the shared folder containing all internship applicant materials.
D. 28-3 ¶ 6; D. 57-3 ¶ 3. Given Mullane’s more limited contact with the SEC—he applied for an
internship, was accepted into that program, and then had his offer rescinded—the SEC search
appears reasonably calculated to capture such relevant documents when it searched the folder that
contains all such application information and correspondence beyond the initial application (which

Mullane would have submitted himself), as well as the emails of those SEC employees Mullane
interacted with.
Accordingly, the Court finds the Marcenaros and McInerney affidavits provide sufficient,
non-conclusory detail about their searches, which were reasonably calculated to locate responsive
documents, and therefore applies a presumption of good faith to DOJ and SEC’s search. See
Oleskey, 658 F. Supp. 2d at 295.
Mullane argues that the “good faith” presumption cannot apply here, asserting that “DOJ
deliberately and knowingly delayed the disclosure of FOIA/[Privacy Act] records for over an entire
year” to coincide with and ensure dismissal of Mullane’s civil action in another case in this District,
Mullane v. Breaking Media, No. 18-cv-12618-PBS (“Breaking Media”), where he named as
defendants Judge Moreno and his internship supervisor Alison Lehr (“Lehr”). D. 44 at 8.
Rebutting the good faith presumption requires more than “purely speculative claims about the
existence and discoverability of other documents.” Maynard, 986 F.2d at 560 (quoting Ground
Saucer Watch, Inc. v. C.I.A., 692 F.2d 770, 771 (D.C. Cir. 1981) (stating that FOIA requester

“must point to evidence sufficient to put the Agency’s good faith into doubt”)).
Mullane asserts that DOJ has “successfully perpetrated a fraud” in Breaking Media, as well
as this matter, and “knowingly committed an obstruction of justice” by withholding responsive
documents that would lead to a different outcome in that case. D. 44 at 8, 12. His only basis is
conjecture about the temporal coincidence of the dismissal in Breaking Media and when the
USAO-SDFL began its search for responsive documents. Id. at 8, 12, 17. But the claims against
Judge Moreno and Lehr were dismissed on September 16, 2019, nearly four months before the
USAO-SDFL processing began on January 8, 2020. Breaking Media, No. 18-cv-12618-PBS, D.
134 (D. Mass. Sept. 16, 2019). The remaining claims dismissed in January 2020 were only against

Breaking Media, Inc. and a journalist, for defamation. See Mullane v. Breaking Media, Inc., 433
F. Supp. 3d 102, 106 (D. Mass. 2020). Moreover, the judge in the other session dismissed that
case for lack of personal jurisdiction, as Judge Moreno and Lehr reside in Florida, and Mullane’s
internship took place there too. Breaking Media, D. 134. These are publicly known facts, and
Mullane fails to explain how these publicly known facts turn upon internal documents that were
withheld, how the disposition of Breaking Media could have differed based on same, or how such
sequence of events reflects bad faith on the part of the Agencies. To the contrary, Marcenaros
explains that the processing delay occurred because she was the sole staff member at USAO-SDFL
processing FOIA requests, with USAO-SDFL receiving over 80 FOIA requests annually. D. 57-
1 ¶ 11; see Nulankeyutmonen Nkihtaqmikon v. Bureau of Indian Affs., 493 F. Supp. 2d 91, 116
(D. Me. 2007) (finding two-year delay in producing responsive documents due to “inefficiencies,
rather than a practice of unjustified delay,” did not defeat conclusion that search was adequate);
Wheeler v. U.S. Dep’t of Just., 462 F. Supp. 2d 48, 54 (D.D.C. 2006) (finding occurrence of one-
year delay in processing FOIA request does not “impugn[] the adequacy or reasonableness” of the

search).
Mullane also asserts that the affidavits here are deficient in that they “fail to provide
specific facts about the scope and methods of [the searches] . . . and the specific search terms they
used.” D. 44 at 4. But both affidavits provide the search terms and methods used for the search.3
Mullane next asserts that DOJ “failed to search in locations where responsive . . . records were
likely to be located [and] failed to use any search terms that would likely result in discovery of
other responsive records.” Id. The Marcenaros affidavit similarly contradicts this assertion, and
Mullane has not brought forward any “countervailing evidence” to suggest that DOJ’s search was
improperly limited in scope or location. See Oleskey, 658 F. Supp. 2d at 294–95.

Mullane next asserts that he has “identified numerous omitted documents that [DOJ]
impermissibly overlooked,” D. 44 at 5–6, but in support of this contention provides the Court with

3 The Agencies also have submitted supplemental affidavits further specifying their search terms
and methodologies. D. 57-1; D. 57-3. Mullane moved to strike these affidavits on the basis that
supporting affidavits (and supplemental statement of facts, D. 57) cannot be filed with a reply
brief. D. 58. There is no such prohibition in the Federal or Local Rules. The decision to consider
a supplemental affidavit is within the discretion of the Court. See McMahon v. Digital Equip.
Corp., 162 F.3d 28, 34 & n.6 (1st Cir. 1998) (ruling that district court did not abuse discretion
accepting supplemental affidavits to cure alleged deficiencies in prior supporting documentation).
Mullane’s opposition asserts that the Agencies’ affidavits are deficient, therefore supplementing
them here is appropriate. A supplemental affidavit is also apt where, as here, “the parties have
continued to raise new theories and defenses.” See New Haven Sav. Bank v. Follins, 431 F. Supp.
2d 183, 191 (D. Mass. 2006). Mullane’s opposition made some additional arguments about the
adequacy and scope of the search. For these reasons, the Court DENIES the motion to strike. D.
58.
only two examples: one where an email attachment was produced but not the underlying email
and another where an email references an attachment that was not produced. Id. at 6, 9. Mullane
also argues that the search for responsive documents should not have been limited to the locations
listed in the Marcenaros affidavit (i.e., requesting all personnel at USAO-SDFL search for
documents in their records), which the court gathers means the personal email of Lehr, and phone

records between Greenberg and Judge Moreno. For this point, Mullane relies upon the supposition
that Lehr used her personal email to “evade FOIA/[Privacy Act] requests,” but points only to one
entry in the DOJ’s Vaughn index, describing emails produced to Mullane, where Lehr forwarded
work emails to her personal email address. Id. at 6; D. 45-1 at 14. Mullane also points out that no
documents between Greenberg and Judge Moreno were produced, which USAO-SDFL claims was
because none were discovered, but Mullane contends is impossible given the nature of his ongoing
litigation against both parties. D. 44 at 6, 9–10. For all these objections, Mullane’s reliance on
individual missing emails and documents, even if he were able to identify them, does not render a
search inadequate as a matter of law. Oleskey, 658 F. Supp. 2d at 298; Nation Magazine,

Washington Bureau, 71 F.3d at 892 n.7. Furthermore, Mullane’s belief that certain documents
must exist but have not been produced, D. 44 at 10, is not the standard for the Court’s inquiry of
whether the search was adequately tailored to the request and performed accordingly. See Wilbur
v. C.I.A., 355 F.3d 675, 678 (D.C. Cir. 2004) (citing Iturralde, 315 F.3d at 314) (concluding that
“agency’s failure to turn up a particular document, or mere speculation that as yet uncovered
documents might exist, does not undermine the determination that the agency conducted an
adequate search for the requested records”).
Finally, Mullane’s argument that the SEC search was deficient because it did not include a
description of the Miami regional office search is moot given the supplemental McInerney
affidavit which describes how individuals in Miami who had contact with Mullane searched their
records for responsive emails and produced same. D. 57-3.
Accordingly, the Court finds that DOJ and SEC conducted adequate searches in response
to Mullane’s requests.
2. FOIA Exemptions

Under FOIA, “certain categories of materials are exempted from the general requirements
of disclosure,” but these exemptions “are to be construed narrowly, with any doubts resolved in
favor of disclosure.” Am. Civ. Liberties Union of Mass., Inc. v. U.S. Immigr. & Customs Enf’t,
448 F. Supp. 3d 27, 36 (D. Mass. 2020) (citing Moffat v. U.S. Dep’t of Just., 716 F.3d 244, 250
(1st Cir. 2013)). “The government bears the burden of proving that withheld materials fall within
one of the statutory exemptions.” Id. (citing 5 U.S.C. § 552(a)(4)(B)). To support the exemptions
here, the Agencies rely on affidavits and a Vaughn index submitted to the Court in connection with
its motion for summary judgment. D. 28-2.
a) Exemption 5

FOIA’s Exemption 5 aims to “facilitate[] government decision making by: (1) assuring
subordinates will feel free to provide uninhibited opinions, (2) protecting against premature
disclosure of proposed government policies, and (3) preventing confusion among the public that
may result from releasing various rationales for agency action.” New Hampshire Right to Life v.
U.S. Dep’t of Health & Hum. Servs., 778 F.3d 43, 52 (1st Cir. 2015). The exemption thus protects
from disclosure “inter-agency or intra-agency memorandums or letters which would not be
available by law to a party other than an agency in litigation with the agency,” and “incorporates
doctrines that would limit the scope of discovery, including the attorney-client privilege, the work-
product protection, and the deliberative-process privilege.” Stalcup v. C.I.A., No. 11-cv-11250-
FDS, 2013 WL 4784249, at *4 (D. Mass. Sept. 5, 2013), aff’d, 768 F.3d 65 (1st Cir. 2014)
(quotations and citation omitted). DOJ invokes Exemption 5 on these three bases and the Court
addresses them in turn.

(1) Attorney-Client Privilege
The attorney-client privilege “protects confidential communications made by a client to his
attorney.” Maine v. U.S. Dep’t of Interior, 298 F.3d 60, 70 (1st Cir. 2002) (citation omitted). The
party asserting the privilege must show “(1) that he was or sought to be a client of [the attorney];
(2) that [the attorney] in connection with the [document] acted as a lawyer; (3) that the [document]
relates to facts communicated for the purpose of securing a legal opinion, legal services or
assistance in legal proceedings; and (4) that the privilege has not been waived.” Id. (citations

omitted).
These documents fall within the attorney-client privilege because in each instance, an
attorney at DOJ, from whom Lehr sought and obtained representation, offered legal advice and
assistance in legal proceedings, Mullane’s civil lawsuit naming her as a defendant. D. 28-2 at 24–
28, 30, 35–36, 39, 42, 49–50, 56 (describing emails between Lehr and her counsel seeking legal
advice related to her civil litigation with Mullane); Id. at 33, 45, 47–48, 51–53 (describing emails
between Lehr and DOJ counsel regarding DOJ representing her in civil litigation with Mullane);
see United States v. Jicarilla Apache Nation, 564 U.S. 162, 170 (2011) (explaining that “the
Government may invoke the attorney-client privilege in civil litigation to protect confidential
communications between Government officials and Government attorneys”).

Mullane’s primary objection is that emails between Lehr and USAO-SDFL Civil Chief
Wendy Jacobus are not subject to the privilege because Jacobus was not Lehr’s personal attorney
(as opposed to Christopher Morgan or Jason Weida), rendering her advice “political, strategic, or
[on] policy issues.” D. 44 at 14. DOJ’s description of the emails contradicts Mullane’s assertion
as Jacobus was involved in discussing Mullane’s civil litigation against Lehr in her capacity as an
attorney at DOJ, from whom Lehr sought representation and legal advice. See D. 28-2 at 27.
Accordingly, DOJ properly invoked the attorney-client privilege.

(2) Work-Product Protection
The work-product doctrine “protects from disclosure materials prepared by attorneys in
anticipation of [or during] litigation.” Maine, 298 F.3d at 66 (internal quotation marks omitted).
Documents are “prepared for litigation and within the scope of the Rule” if, “in light of the nature
of the document and the factual situation in the particular case, the document can be fairly said to
have been prepared or obtained because of the prospect of litigation.” Id. at 68 (citations omitted).

When a document is created for more than one purpose, it is still protected by the privilege if one
of the reasons it was prepared was in anticipation of litigation. Id. “There is no requirement that
a document . . . be written by an attorney to be protected,” nor by an attorney who is party to the
litigation at issue. Am. Civ. Liberties Union Found., Inc. v. U.S. Dep’t of Educ., 320 F. Supp. 3d
270, 281 (D. Mass. 2018) (citing Church of Scientology Int’l v. U.S. Dep’t of Just., 30 F.3d 224,
236 (1st Cir. 1994)). “Instead, [the Agencies] need only prove that the document was prepared
under the direction of an attorney in contemplation of litigation.” Id. (quoting Church of
Scientology Int’l, 30 F.3d at 236). “An agency seeking to withhold a document in its entirety
under this exemption must identify the litigation for which the document was created (either by
name or through factual description) and explain why the work-product privilege applies to all

portions of the document.” Church of Scientology Int’l, 30 F.3d at 237.
Accordingly, Lehr’s email circulating her division’s Weekly Activity Report was properly
redacted as work product as such document contained legal strategies, impressions and research
related to ongoing or future litigation by USAO-SDFL. D. 28-2 at 22; see Martin v. Dep’t of Just.,
488 F.3d 446, 455 (D.C. Cir. 2007) (affirming internal agency memo that contained “legal analyses
of potential claims available” to agency and set forth “facts integral to the legal analyses and
discussions of investigation strategy” was properly withheld as attorney work product).
Next, draft memoranda of law, other filings, and emails discussing individual

representation of Lehr were properly redacted as work-product because Mullane’s lawsuit against
them was ongoing and these documents were all prepared because of that ongoing litigation.4 D.
28-2 at 14, 24, 27–28, 32, 34–35, 49, 73. Furthermore, a two-page memorandum drafted by AUSA
Adrienne Rosen describing interactions with Mullane between January 23, 2019 and February 14,
2019 was properly withheld as Mullane’s civil lawsuit against Lehr and other government
defendants was ongoing during this period. Id. at 65; see Diaz v. Devlin, 327 F.R.D. 26, 29 (D.
Mass. 2018) (quoting Hickman v. Taylor, 329 U.S. 495, 510–11, (1947)) (explaining that
“[p]rotected materials include an attorney’s . . . ‘mental impressions . . . reflected [in]
memoranda’”).

(3) Deliberative Process Privilege
As an initial matter, Mullane asserts that the deliberative process privilege cannot be
invoked here because it is “overcome and defeated by the ‘government misconduct’ exception,”
where he alleges the Agencies delayed processing his FOIA/Privacy Act requests for “over an
entire year” until forty-eight hours after Breaking Media was dismissed and then mistyped his
email address causing further delay in producing documents to him. D. 44 at 13–14. He relies

upon the First Circuit’s statement in Texaco Puerto Rico, Inc. v. Dep’t of Consumer Affs., 60 F.3d

4 Mullane’s lawsuit against Lehr, Judge Moreno and the other defendants was filed on November
27, 2018. Breaking Media, 433 F. Supp. 3d at 108.
867, 885 (1st Cir. 1995) that “where the documents sought may shed light on alleged government
malfeasance, the [deliberative process] privilege is routinely denied.” That case, however,
involved civil discovery, not FOIA, and the few courts to apply a government misconduct
exception in a FOIA case have described the exception as narrow and required the party asserting
the exception to “provide an adequate basis for believing that [the documents] would shed light

upon government misconduct.” See Stalcup, 2013 WL 4784249, at *4–5 (quoting Nat’l
Whistleblower Ctr. v. Dep’t. of Health and Hum. Servs., 903 F. Supp. 2d 59, 66–68 (D.D.C.
2012)). As discussed above, the Court finds Mullane’s allegations of government misconduct to
lack factual support. Further relevant here, Mullane has not stated how the “specific documents
[withheld pursuant to the deliberative process privilege] would shed light on” the alleged
processing delays, either to coincide with the motion to dismiss or in typing his email incorrectly
when turning over documents. Id. at *5. Accordingly, Mullane has not made a sufficient showing
that the government misconduct exception applies here.
To invoke the deliberative process privilege, DOJ “must demonstrate that the

communications were both ‘predecisional’ and ‘deliberative.’” New Hampshire Right to Life, 778
F.3d at 52 (quoting Providence J. Co. v. U.S. Dep’t of Army, 981 F.2d 552, 557 (1st Cir. 1992)).
“A document is predecisional if the agency can: ‘(1) pinpoint the specific agency decision to
which the document correlates, (2) establish that its author prepared the document for the purpose
of assisting the agency official charged with making the agency decision [and was not the final
decisionmaker], and (3) verify that the document precedes, in temporal sequence, the decision to
which it relates.’” Id. Conclusory assertions that merely parrot the legal test do not suffice and an
agency’s description of documents must at least specify the relevant final decision. See Senate of
the Com. of Puerto Rico v. U.S. Dep’t of Just., 823 F.2d 574, 585 (D.C. Cir. 1987); Sensor Sys.
Support, Inc. v. F.A.A., 851 F. Supp. 2d 321, 331 (D.N.H. 2012) (citing Providence J. Co., 981
F.2d at 557) (finding that agency cannot invoke deliberative process privilege without “at the very
least identify[ing] the decision contemplated”). “A predecisional document will qualify as
‘deliberative’ provided it (i) formed an essential link in a specified consultative process, (ii)
‘reflect[s] the personal opinions of the writer rather than the policy of the agency,’ and (iii) if

released, would ‘inaccurately reflect or prematurely disclose the views of the agency.’”
Providence J. Co., 981 F.2d at 559. “[T]he agency must present to the court the function and
significance of the document(s) in the agency’s decisionmaking process, the nature of the
decisionmaking authority vested in the office or person issuing the disputed document(s), and the
positions in the chain of command of the parties to the documents.” Arthur Andersen & Co. v. I.
R. S., 679 F.2d 254, 258 (D.C. Cir. 1982) (quotations and citation omitted).
DOJ thus properly invoked the deliberative process privilege when it redacted an unsigned,
not-final draft where Lehr “was seeking feedback from the [USAO-SDFL] Civil Litigation Chief
prior to formal submission” on her request for legal representation from DOJ. D. 28-2 at 58. Such

description identifies the specific agency decision (representation of Lehr), that it was a
preliminary draft, and how the parties to the draft fit into the agency chain of command (Lehr, an
AUSA, and Jacobus, the Litigation Chief).
DOJ cannot, however, redact or withhold an email from Lehr to “University of Miami’s
School of Law,” an outside party, “certifying Mullane’s completion of his externship in her office,”
D. 28-2 at 14–15, since “communications between agencies and outside parties . . . are not
protected under Exemption 5,” and such external communications would waive the privilege.
Elec. Frontier Found. v. U.S. Dep’t of Just., 826 F. Supp. 2d 157, 171 (D.D.C. 2011). As this
record is described as an external communication with Mullane’s law school, and DOJ invokes
deliberative process in redacting its contents, those redactions must be removed, and the record
released to Mullane accordingly.
The Court has also identified two deficiencies in DOJ’s Vaughn index as to other records
redacted or withheld pursuant to deliberative process. First, several index entries fail to specify
the final agency decision being contemplated. See D. 28-2 at 40 (describing “emails regarding

policies related to the intern/extern program” but not specifying policy or decision), 42 (describing
same), 50 (describing emails with “impression of developments in civil litigation with [Mullane]
that may be considered during future rulemaking” but not stating what rule being considered), 54
(describing email “discussing potential action that may be taken in light of civil litigation
developments” but not stating what the potential action is), 68 (describing email “discussing
specific actions that [USAO-SDFL] may or may not take relating to its Internship Program” but
not stating what those “specific actions” are), 69 (describing same), 72 (describing email where
AUSAs “discuss their impressions of [Mullane’s] FOIA requests and related civil litigation” but
not specifying agency decision being contemplated); see also Sensor Sys. Support, Inc., 851 F.

Supp. 2d at 331 (noting that agency must identify the specific decision being deliberated); Bloche
v. Dep’t of Def., 370 F. Supp. 3d 40, 54 (D.D.C. 2019) (finding index descriptions insufficient
because specific policies “never identified or described”). Second, several index entries fail to
describe the relevant parties to a record or describe the chain of command among the parties. See
D. 28-2 at 29 (describing emails between AUSAs at SDFL but not explaining relative positions or
chain of command), 40 (describing “internal [USAO-SDFL] emails” but not naming author or
recipient of emails), 42 (describing same), 50 (describing emails between AUSAs at USAO-SDFL
but not explaining relative positions or chain of command), 72 (describing emails between AUSAs
within multiple DOJ offices but not explaining relative positions or chain of command); see also
New Orleans Workers’ Ctr. for Racial Just. v. U.S. Immigr. & Customs Enf’t., 373 F. Supp. 3d
16, 53 (D.D.C. 2019) (citing Arthur Andersen & Co., 679 F.2d at 258) (finding that “Vaughn
entries assert[ing] only that withheld documents were sent to ‘various [agency] Officers’ or contain
internal discussions between ‘agency officers and/or employees,’ [but] provides no further
information about these officers or employees and the nature of their decisionmaking authority . .

. fall far short of satisfying the [agency’s] burden to provide ‘explicit’ information regarding the
parties to these documents”).
Where, as here, a court finds that a Vaughn index or agency affidavit inadequately
describes records redacted or withheld under the deliberative process privilege, it may deny
summary judgment as to those records and “direct the government to revise its submissions with
respect to [the] specific records.” Church of Scientology Int’l., 30 F.3d at 239; Spirko v. U.S.
Postal Serv., 147 F.3d 992, 997 (D.C. Cir. 1998) (citations omitted) (explaining that “[i]f the
agency fails to provide a sufficiently detailed explanation to enable the district court to make a de
novo determination of the agency’s claims of exemption, the district court then has several

options” including but not limited to requesting further affidavits); see Seife v. U.S. Dep’t of State,
298 F. Supp. 3d 592, 631 (S.D.N.Y. 2018) (denying summary judgment without prejudice as to
documents withheld under Exemption 5 and requiring agency to submit updated Vaughn index);
Elec. Frontier Found. v. C.I.A., No. 09-cv-3351 SBA, 2013 WL 5443048, at *26 (N.D. Cal. Sept.
30, 2013) (finding same); Sensor Sys. Support, Inc., 851 F. Supp. 2d at 336 (denying summary
judgment as to the documents with insufficient descriptions and “directing the agency either to
produce a supplemental Vaughn index and/or supporting affidavit to enable [the court] to
determine whether redactions in those documents are exempt from disclosure, or to submit the
documents for in camera review”); Elec. Frontier Found., 826 F. Supp. 2d at 175 (denying
summary judgment without prejudice as to the documents insufficiently described in the index and
“directing the agency to revise their Vaughn submissions, taking into account the deficiencies
identified by the Court”); Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. 2d 252, 270
(D.D.C. 2004) (denying summary judgment and requiring agency to review all previously withheld
and redacted documents, and after review, produce documents unredacted that it determines do

not fall under Exemption 5 and submit more detailed Vaughn index to those that it still believes
should be withheld).
Accordingly, because the Court finds the index descriptions inadequate with respect to the
records discussed above, the Agencies shall either submit a revised Vaughn index by April 16,
2021, correcting the deficiencies outlined above, or produce the documents unredacted to Mullane
and inform the Court of its decision, also by April 16, 2021. For records that were redacted or
withheld pursuant to the deliberative process privilege as well as the attorney-client or work-
product privileges, D. 28-2 at 14, 22, 24, 26, 28, 32, 34, 35, 65, 73, the Court is satisfied by DOJ’s
submissions to invoke the latter two. Accordingly, the Court’s conclusion regarding the above

applies to those records redacted or withheld under Exemption 5 invoking only the deliberative
process privilege. D. 28-2 at 29, 40, 42, 50, 54, 68, 69, 72.
b) Exemption 6
Exemption 6 protects from disclosure “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6). Mullane does not appear to challenge the Agencies’ Exemption 6 redactions. See
generally D. 44. Furthermore, the redactions encompass direct emails, telephone and fax numbers
of both private individuals other than Mullane and government employees, as well as personal
information of other law students in the Agencies’ internship programs. See D. 28-2. The Court
is satisfied that redacting this information comports with the balancing required by FOIA and sees
no strong public interest in releasing said personal information of the individuals reflected in these
records. See Stylianos v. U.S. Citizenship and Imm. Servs., No. 20-CV-11127-IT, 2021 WL
294287, at *5 (D. Mass. Jan. 28, 2021).
3. Privacy Act

“The [Privacy Act] gives agencies detailed instructions for managing their records and
provides . . . relief to individuals aggrieved by failures on the Government’s part to comply with
the requirements” such as “a right of access against any agency refusing to allow an individual to
inspect a record kept on him.” Doe v. Chao, 540 U.S. 614, 618 (2004). The relevant provision
here states that an agency, “upon request by any individual to gain access to his record or to any
information pertaining to him which is contained in the system, permit him . . . to review the record
and have a copy made of all or any portion thereof. . . .” 5 U.S.C. § 552a(d)(1). Mullane asserts
that the Agencies have “unlawfully withheld all [Privacy Act] records,” that “there is no applicable
[Privacy Act] exemption here,”5 and that he is “entitled to an award of actual damages” as a result.

D. 44 at 19. DOJ contends that it “did not redact or withhold any information contained in any
responsive record under [Privacy Act] exemptions,” but that “some of the [responsive] records”
were “exempt from disclosure under 5 U.S.C. § 552a(j)(2) [as] related to investigations or
prosecutions of third parties,” therefore “outside the scope of the Privacy Act [and] processed
solely under FOIA” and some records “were subject to the [Privacy Act], primarily relating to”

5 Privacy Act exemptions are distinct from exemptions under FOIA. House v. U.S. Dep’t of Just.,
197 F. Supp. 3d 192, 209 (D.D.C. 2016) (citing Martin v. Office of Special Counsel, 819 F.2d
1181, 1184 (D.C. Cir. 1987)) (explaining that “[i]f a FOIA exemption covers the documents, but
a Privacy Act exemption does not, the documents must be released under the Privacy Act”); see
also 5 U.S.C. § 552a(t) (establishing same).
Mullane’s internship with USAO-SDFL and were released without any Privacy Act exemptions
applied. D. 56 at 13–14.
Mullane asserts that Privacy Act exemption (j)(2) does not apply here because DOJ cannot
point to a specific criminal investigation related to his request that fits within the exemption. D.
44 at 17–18. Mullane’s argument misconstrues the exemption, which allows agencies to

“promulgate rules to exempt records systems from Privacy Act coverage” if they contain criminal
investigatory material. Campbell v. U.S. Dep’t of Just., 133 F. Supp. 3d 58, 69 (D.D.C. 2015)
(citing 5 U.S.C. § 552a(j)(2)). Thus, the “general exemption” applies to the “system” maintained
by the agency, not to the individual circumstances of an investigation or record. 5 U.S.C. §
552a(j)(2); 28 C.F.R. § 16.81 (enumerating systems of records at U.S. Attorney’s Offices pursuant
to 5 U.S.C. § 552a(j)(2)). At U.S. Attorney’s Offices, like USAO-SDFL, both criminal and civil
case files are exempt from the Privacy Act, among other systems. 28 C.F.R. § 16.81(a)(2), (a)(4).
To the extent there were records about Mullane on such systems housed at USAO-SDFL, these
would not be subject to Privacy Act access; however, DOJ has not sufficiently asserted the

exemption because it did not identify to the Court which records were at issue or on which systems
the records were located. See House, 197 F. Supp. 3d at 209–10 (determining, based on agency
affidavit, that records located on DOJ’s Title III database were exempted by regulation under (j)(2),
but that DOJ email archive was not enumerated in regulations); Watson v. U.S. Dep’t of Just., 799
F. Supp. 193, 197 (D.D.C. 1992) (finding records requested from U.S. Attorney’s Office were
properly withheld because agency asserted in affidavit that records were “maintained in the
Criminal Case File System,” a system of records exempt under 28 C.F.R. § 16.81).
Regardless, Mullane’s Privacy Act claim is barred because he failed to exhaust his
administrative remedies and the Court therefore lacks jurisdiction over it.6 See Barouch v. U.S.
Dep’t of Just., 962 F. Supp. 2d 30, 67 (D.D.C. 2013) (noting that “failure to exhaust administrative
remedies under the Privacy Act is a jurisdictional deficiency because exhaustion is required by
[the] statute”) (citing Mulhern v. Gates, 525 F. Supp. 2d 174, 183 (D.D.C. 2007) (noting that

Privacy Act requires plaintiff to “seek review within the agency under the agency’s regulations,”
and failure to do so deprives court of subject matter jurisdiction); 28 CFR § 16.45 (outlining appeal
process within DOJ for denials of requests for access to records, which must be made within 60
days of such denial and stating that plaintiffs who “wish to seek review by a court of any adverse
determination or denial of a request . . . must first appeal it under this section”); 17 CFR § 200.80(f)
(outlining same for SEC, requiring appeals within 90 days before seeking judicial review); Varad
v. U.S. Dep’t of the Treasury, No. 18-cv-91338-RGS, 2018 WL 3849861, at *2 (D. Mass. Aug.
13, 2018) (dismissing Privacy Act claim for failure to exhaust administrative remedies).
Accordingly, his Privacy Act claim is barred.7

B. Motion to Amend
On February 8, 2021, Mullane sought leave again to amend his complaint to add six Privacy
Act counts, one FOIA count and one count of retaliation under the Whistleblower Protection

6 Mullane only appealed the Agencies’ denial of his request to expedite processing and for a fee
waiver. See D. 1-1 at 11, 30; Barouch, 962 F. Supp. 2d at 67 (finding that appeal of initial adverse
determination did not apply to “subsequent determination to withhold” records).
7 Even if Mullane had stated a claim under the Privacy Act and exhausted his administrative
remedies as required by the statute, damages are not an available remedy for records access claims.
Mulhern, 525 F. Supp. at 183–84 (citing 5 U.S.C. § 552a(g)(1)(B)) (explaining that Privacy Act
permits “individuals who believe they have been wrongly denied access to records pertaining to
them may bring a civil action to compel the agency to disclose the records” and claims for actual
damages available in improper disclosure cases).
Enhancement Act of 2012 (“WPEA”), 5 U.S.C. §§ 2302(b). D. 53-1. Under Fed. R. Civ. P. 15(a),
leave to amend will be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). “Reasons
for denying leave include undue delay in filing the motion, bad faith or dilatory motive, repeated
failure to cure deficiencies, undue prejudice to the opposing party, and futility of amendment.”
U.S. ex rel. Gagne v. City of Worcester, 565 F.3d 40, 48 (1st Cir. 2009) (citation omitted).

First, amendment at this stage would be futile. In October 2020, the Court denied
Mullane’s first motion to amend his complaint, which sought to add the same WPEA count. D.
23; D. 23-1 at 14; D. 35. Upon review of the proposed amended complaint, the Court finds that
there are no new facts or allegations as to the WPEA claim. There are also no new facts as to
either Counts I or II in Mullane’s original complaint arising from his 2018 FOIA and Privacy Act
requests. Mullane now brings to the Court’s attention a second FOIA and Privacy Act request,
sent to DOJ in September 2020 after the Agencies moved for summary judgment on his 2018
request, where he requested additional records related to him and his internship. D. 53-1 at 18.
Mullane indicates that DOJ has yet to respond or produce documents related to this request, id.,

but amending the complaint with premature factual allegations and claims for liability regarding a
separate FOIA request does not impact the facts and claims surrounding the 2018 request, the
subject of these motions. Finally, as discussed above, Mullane is barred from bringing claims
under the Privacy Act related to his 2018 request for failure to exhaust administrative remedies.
Second, the Court finds undue delay in moving to amend. Where, as here, “a considerable
period of time has passed between the filing of the complaint and the motion to amend,” the burden
is on “the movant to show some valid reason for his neglect and delay.” Nikitine v. Wilmington
Tr. Co., 715 F.3d 388, 390–91 (1st Cir. 2013) (citation omitted) (affirming denial of motion to
amend when “plaintiff allowed nearly a year to elapse before seeking to amend his complaint and
proffered no good reason for the delay”). Mullane filed his complaint over two years ago, in
November 2019. D. 1. As discussed above, the final transmission of responsive documents, in
June 2020. D. 28-2 at 5. Mullane states that review of these documents uncovered facts “not
previously available” to him, D. 53 at 3, but such facts were necessarily available to him since
June 2020, before he first moved to amend, D. 23, before the Agencies moved for summary

judgment, D. 27, and before he opposed the motion for summary judgment in December 2020, D.
44. Moreover, Mullane’s proposed amended complaint as to the 2018 request is premised on the
same facts as his original complaint, including the same exhibits and alleging the same theory that
government agencies conspired to commit obstruction of justice in processing his 2018 FOIA and
Privacy Act request. These are not new allegations; Mullane merely adds claims based on the
same facts. Amendment to add allegations surrounding the 2020 FOIA/Privacy Act request is
also not warranted as they are “additional claims related to new FOIA requests . . . [not filed] until
after summary judgment briefing” on prior FOIA requests, where Mullane “provides no reason for
this delay.” James Madison Project v. Dep’t of Just., 208 F. Supp. 3d 265, 280 (D.D.C. 2016)

(denying leave to amend or supplement FOIA complaint to add allegations of additional FOIA
requests sent to agencies after summary judgment was briefed).
Accordingly, Mullane’s motion to amend is DENIED.
VI. Conclusion

For the foregoing reasons, the Court ALLOWS in part and DENIES in part the Agencies’
motion for summary judgment, D. 27, and DENIES Mullane’s motions to strike and amend. D.
53; D. 58. The motion for summary judgment is ALLOWED in all respects except for the
documents described above that were withheld or redacted solely under the deliberative process
privilege, see page 21, supra, which is DENIED without prejudice. The Agencies must produce
the communications with an external party unredacted, D. 28-2 at 14–15, and shall either submit
a revised Vaughn index by April 16, 2021, correcting the deficiencies outlined above, or produce
the documents unredacted to Mullane and inform the Court, also by April 16, 2021.
So Ordered.

/s/ Denise J. Casper
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10199348. Public record. Not legal advice.