Sheppard v. United States Department of Justice

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

BRYAN E. SHEPPARD, )

)

Plaintiff, )

)

vs. ) Case No. 17-01037-CV-W-ODS

)

UNITED STATES DEPARTMENT )

OF JUSTICE, )

)

Defendant. )

ORDER AND OPINION (1) DENYING DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT, AND (2) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Pending are Defendant United States Department of Justice’s Motion for

Summary Judgment (Doc. #18), and Plaintiff Bryan Sheppard’s Cross Motion for

Summary Judgment (Doc. #27). For the following reasons, both motions are denied

without prejudice.

I. BACKGROUND1

A. The 1988 Fires

In November 1988, two fires occurred in southeast Kansas City. The firefighters

who arrived on the scene extinguished the first fire. A second fire began in a trailer

containing 25,000 pounds of ammonium nitrate and fuel oil, which were used by a

construction company to blast through bedrock. As the firefighters began trying to

extinguish the second fire, the trailer exploded, immediately killing all six firefighters. A

fire truck parked next to the trailer disintegrated. State and federal investigations

followed. But the state investigation was later abandoned, and the federal investigation

became dormant.

1 Unless otherwise noted, the facts in this section are uncontroverted by the parties.

See Doc. #21; Doc. #27-1, at 5-22; Doc. #31, at 2-3.

In 1994, the federal investigation was revived. In 1996, Darlene Edwards,

Richard Brown, Earl “Skip” Sheppard, George “Frank” Sheppard, and Bryan Sheppard

were indicted in this Court on arson charges for the 1988 fires. United States v.

Sheppard, No. 96-CR-0085-FJG (W.D. Mo.) (“the Sheppard criminal case”). The trial

began on January 13, 1997. During trial, the government did not present eyewitness

testimony or physical evidence directly linking the defendants to the fires. Each

defendant maintained his or her innocence throughout the trial. On February 26, 1997,

the jury found all defendants guilty of aiding and abetting an act of arson which resulted

in the deaths of six firefighters. Each defendant was sentenced to life imprisonment.

B. The Star’s Articles

Beginning in 2007 and continuing through 2009, The Kansas City Star (“the

Star”) newspaper published a series of investigative articles alleging government

misconduct in the Sheppard criminal case. Doc. #21-1, at 26.2 According to the

Department of Justice (“the DOJ”), the Star’s “articles asserted that several government

witnesses lied at trial,” “government representatives used coercive tactics…to fabricate

inculpatory evidence or to dissuade witnesses from testifying about exculpatory

evidence,” and “suppressed and/or newly-discovered evidence indicated that persons

other than the convicted defendants carried out the arson.” Id. at 26.

C. The Criminal Division’s Investigation

In July 2008, the United States Attorney for the Western District of Missouri

asked the DOJ to review the Star’s allegations “to avoid any appearance of partiality.”

Id. The Office of the Deputy Attorney General assigned the DOJ’s Criminal Division to

review the Star’s allegations. Id. The Criminal Division assembled a team, which

included a Criminal Division prosecutor and a Special Agent from the DOJ’s Office of

Inspector General, to conduct the investigation (hereinafter, “the review team”). Id. at

30. A Special Agent from the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) “was

2 The Court’s citations to page numbers refer to the pagination applied by the Court’s

CM/ECF system to documents filed by the parties.

assigned to act as a liaison with the ATF, providing assistance in obtaining relevant

reports and information.” Id.

From 2008 to 2011, the review team “conducted an extensive investigation.” Id.

The review team interviewed individuals identified in the Star’s articles as well as other

civilians and law enforcement officers. Id. They “secured the files of the assigned

AUSA Paul Becker, and reviewed those materials along with the 4,000 page trial

transcript.” Id. They also “located three tapes in [John] Barchers’ ATF file, which

appear to be conversations between Barchers [who was a witness for the government]

and [REDACTED].” Id. at 37 n.8.3 The review team “was unable to determine whether

the tapes and/or transcripts were provided to the defense, and…was unable to interview

Barchers before his death.” Id. The review team determined a written statement from

Barchers, which recounted admissions by Frank Sheppard, Earl Sheppard and

[REDACTED] and statements by [REDACTED] that she thought Frank Sheppard and

Earl Sheppard “had something to do with the explosion,” and his grand jury testimony

were provided in discovery. Id. Finally, the review team obtained and reviewed several

post-trial affidavits by individuals who recanted their trial testimonies or asserted they

had other information related to the arson. Id. at 31.

At the conclusion of the investigation, a twenty-page memorandum4 (hereinafter,

“the memorandum”) was sent to Lanny Breuer, Assistant Attorney General, from Kevin

Carwile, Chief, Capital Case Unit; James Trusty, Acting Chief, Organized Crime and

Gang Section; and John Cox, Trial Attorney, Organized Crime and Gang Section. Id. at

25. The memorandum went “through” Jason Weinstein, Deputy Assistant Attorney

General. Id. According to the memorandum, “[t]he review was not, and was not

intended to be, a re-investigation of the arsons.” Id. at 26. “Rather, the review was

intended to address the Star’s assertions that the defendants may have legitimate

claims of actual innocence.” Id.

3 When the DOJ later produced the memorandum in response to FOIA requests, its

redactions were blacked out. To avoid any confusion, the Court utilizes “REDACTED”

for those portions that were blacked out.

4 In this section, the Court’s review of the memorandum is limited to the redacted

version of the memorandum. See Doc. #21-1, at 25-44.

The memorandum was divided into five sections. Id. at 26-27, 31-44. Section

One addressed the Star’s allegation that five individuals allegedly gave false trial

testimony. Id. at 31-32. The review team interviewed two witnesses, although their

names and identifying information were redacted from the memorandum. Id. The

review team reported both witnesses confirmed they testified truthfully. Id. at 31. The

memorandum indicated one witness recanted when talking with the Star because the

witness feared retaliation and did it “out of sympathy for [REDACTED].” Id. at 32. The

review team noted there was some information it did “not consider material to claims of

actual innocence” that was not provided to defense counsel. Id. That information was

redacted from the memorandum.

In Section Two, the review team discussed the allegations of undue pressure or

coercion. Id. at 33-37. The Star reported the government, and more specifically,

Special Agent True, attempted to coerce twelve individuals who did not testify, allegedly

for the purpose of persuading them to falsely implicate the defendants or dissuade them

from exculpating the defendants. Id. at 33. The review team interviewed eight of the

twelve individuals, but the identities of those interviewed were redacted in the

memorandum. Id. at 33-37. The review team also “interviewed numerous current and

former law enforcement officers who had worked at various times on the investigation –

all of whom reported that neither Special Agent True nor AUSA Becker placed undue

pressure on witnesses or otherwise strayed from the bounds of professional conduct

during the investigation and prosecution.” Id. at 33. The review team stated that “[o]f

the four individuals who purported to offer facts underlying their claims of coercion -

[REDACTED] - three provided stories that were contradicted by the particular agents

involved, as well as by statements of other agents and officers involved, as well as by

statements of other agents and officers about the manner in which the investigation was

conducted.” Id. at 36. One individual “provided an account that [was] unsupported and

simply unbelievable.” Id. Another individual “was so lacking in credibility that

[REDACTED].” Id. at 36.

Section Three discussed exculpatory evidence that was allegedly withheld. Id. at

37-40. The memorandum stated the Star reported the government may have ignored or

suppressed information favorable to the defense provided by Debra Cearley, Ella

Hutton, Patti Smith, and another individual whose name was redacted. Id. at 37. The

review team interviewed some of the individuals, but the number and identities of the

witnesses interviewed was redacted. Id. The review team concluded some information

“does not appear to have been produced prior to trial.” Id.

Although Section Four’s heading was partially redacted (i.e., “Allegations

Regarding Information [REDACTED]”), the memorandum’s introduction, which

summarized each section, indicated this section referred to the Star uncovering

evidence. Id. at 27. The summary continues, “[t]he review team found that the

government disclosed substantial potentially exculpatory information prior to trial,

including information suggesting that [REDACTED] others may have been involved in

the arson….” Id. Nevertheless, the review team “concluded...the information provided

by these witnesses would not have called into question the defendants’ guilt of the

crimes charged.” Id. at 41.

In Section Five, the review team stated that, during its investigation, it “identified

several newly-developed pieces of information that were not previously known to the

prosecution.” Id. at 43. According to the review team, “this newly-developed

information suggests that [REDACTED] may have been involved in the arsons in

addition to – and not to the exclusion of – the defendants.” Id. The review team

determined this information “would not have called into question the defendants’ guilt of

the crimes charged.” Id.

D. The DOJ’s FOIA/PA Unit

The DOJ’s Freedom of Information Act and Privacy Act Unit (“FOIA/PA Unit”) is

responsible for processing FOIA and Privacy Act requests seeking information from the

Criminal Division. Doc. #21-1, at 1. When initiating a search for records responsive to

a FOIA request, the FOIA/PA Unit’s “standard practice...is to send out to the Criminal

Division section or component most likely to maintain records a form memorandum

concerning the request” accompanied by the FOIA request. Id. at 4. The receiving

section is instructed to review the request, “[s]earch all records and file systems in [the]

Section,” and “[r]espond on the attached sheet advising [the FOIA/PA Unit] of any files

located pertaining to the subject matter of the request, including records stored at the

Federal Records Center(s).” Id. at 4-5. The receiving section is also directed to copy all

records located and attach the copies to its response. Id. at 5.

E. The Star’s FOIA Requests

In July 2011, the Star made a FOIA request for “the entire investigative report

authored by John Cox...and Pam McCabe…into the 1995-1997 prosecution of five

defendants convicted in a 1988 explosion in Kansas City that killed six firefighters.”

Doc. #21-1, at 3. In response, the Criminal Division informed the Star that it located one

responsive file - i.e., the memorandum. Id. The Criminal Division informed the Star that

it was withholding portions of the final version of the memorandum subject to

Exemptions 6, 7(C), and 7(D) of the FOIA. Id. The Criminal Division released three

pages in full, fifteen pages in part, and withheld two pages of the final version of the

memorandum. Id. at 3-4, 23-44.

In August 2011, the Star submitted another FOIA request. Id. at 4, 46-47. This

time, the Star asked for “copies of all the underlying documents, such as field

documents and/or reports of interviews, created by John Cox...and Pam McCabe...to

produce their investigative report into the 1995-1997 prosecution of five defendants….”;

“the original request for the investigation from former U.S. Attorney John Wood”;

“memoranda created within the DOJ as to the scope and/or nature of the investigation”;

“documents or memo[randa] relating to whether the investigators should have subpoena

power as part of their probe”; “logs or listings of tape-recorded interviews of witnesses

from the original investigation by the ATF that were turned over to McCabe and Cox for

their review[;] and “any memoranda relating to the Cox/McCabe report during the editing

stage of the process.” Id.

Regarding the Star’s second FOIA request, the FOIA/PA Unit sent search

requests to three sections in September 2011. Id. 5-6. One request was sent to the

Organized Crime and Gang Squad (“OCGS”) of the Criminal Division. Id. at 5. OCGS

was responsible for reviewing the Star’s allegations, and according to the FOIA/PA Unit,

OCGS was the section most likely to maintain responsive records. Id. In response to

the search request, OCGS sent three boxes of records to the FOIA/PA Unit. Id.

Another request was sent to the Capital Case Unit (“CCU”) “to search for

potentially responsive records of one former OCGS staff member.” Id. More

specifically, the Information and Technology Management Team (“ITM”) searched a

CCU custodian’s email and hard drive for certain search terms (i.e., “Kansas City,” “KC,”

“Sheppard,” and “Firefighters”) during the timeframe of June 2011 to February 2012. Id.

The search yielded no responsive records. Id.

The third request was sent to the Office of the Assistant Attorney General. Id. at

6. A search of one Deputy Assistant Attorney General custodian’s hard-copy files was

conducted. Id. This custodian’s emails were not searched because he was not

employed by the Criminal Division during the request’s date range. Id. ITM also

searched one former Deputy Assistant General custodian’s emails for specific terms

(i.e., “Kansas City,” “KC,” “Firefighters Case,” “United States v. Sheppard,” and

“subpoena”) between June 1, 2008, and October 31, 2001. Id. According to the DOJ,

the search resulted in one document that was not responsive to the request. Id.

F. Sheppard’s FOIA Requests

On February 2, 2012, Sheppard made a FOIA request. Doc. #21-1, at 6, 52-53.

He sought an unredacted copy of the memorandum dated July 9, 2011, and “[a]ny and

all additional reports, addendums, tapes, notes or other materials associated with this

investigation by the Office of Inspector General or the Department of Justice….” Id.

According to the DOJ, because the FOIA/PA Unit was already in possession of the

responsive records, a search for responsive records was not initiated. Id. at 6.

In April 2016, Sheppard, through his counsel, made another FOIA request,

asking for “the opportunity to copy and inspect public records including and related to

the July 8, 2011 Department of Justice – Criminal Division Memorandum...regarding

‘Review of Kansas City Star Allegations Regarding the Prosecution of United States v.

Sheppard’” as well as “all notes, recordings, and transcripts pertaining to the Inspector

General’s investigation that produced that memorandum.” Id. at 7, 55. According to the

DOJ, “[b]ased upon the three prior FOIA requests, the records being sought by

[Sheppard] were already searched for, collected, and in the possession of the FOIA/PA

Unit.” Id. at 7.

In November 2016, the DOJ informed Sheppard’s counsel that “a search has

been conducted in the appropriate section” and 450 pages responsive to his FOIA

request were located.5 Id. at 7, 69-70. The DOJ informed Sheppard that three pages

were appropriate for full release, thirty-five pages were appropriate for partial release,

and 412 pages were exempt from disclosure pursuant to the FOIA’s Exemptions 5, 6,

7(C), and/or 7(D). Id. at 69-70.

In December 2016, Sheppard administratively appealed the DOJ’s decision

related to his FOIA request. Doc. #21-1, at 72-75. In February 2017, Sean O’Neill,

Chief of the Administrative Appeals Staff for the DOJ’s Office of Information Policy, sent

a letter to Sheppard’s counsel stating he received and reviewed the appeal. Id. at 81.

O’Neill determined the records responsive to Sheppard’s request were exempt from the

access provision of the Privacy Act. Id. at 81. Pursuant to the FOIA, O’Neill concluded

the Criminal Division properly withheld certain information because the information was

protected from disclosure by Exemptions 5, 6, and 7(C). Id. at 81-82. He also

determined “it is reasonably foreseeable that disclosure of the information withheld

would harm the interests protected by these exemptions.” Id. at 82.

G. Sheppard’s Release from Prison

In 2012, the United States Supreme Court held “mandatory life without parole for

those under the age of 18 at the time of their crimes violates the Eighth Amendment’s

prohibition on ‘cruel and unusual punishments.’” Miller v. Alabama, 567 U.S. 460, 465

(2012). In 2016, the Supreme Court concluded Miller applied retroactively on collateral

review. Montgomery v. Louisiana, 136 S. Ct. 718, 732-37 (2016). Sheppard was a

minor at the time of the arson in 1988. Pursuant to Miller and Montgomery, in March

5 According to the declaration provided by the DOJ, there were 454 pages of

responsive records located. However, twenty-two of those pages were duplicative.

Thus, the responsive records totaled 432 pages. Doc. #21-1, at 7 n.2.

2017, Sheppard was resentenced to twenty years and released from prison. The other

living defendants6 in the Sheppard criminal matter remain incarcerated.

H. This Lawsuit and the Pending Motions

In December 2017, Sheppard filed this matter pursuant to the FOIA. Doc. #1.

He alleges the DOJ failed to perform an adequate search for responsive documents,

failed to produce responsive documents, failed to provide adequate justification for the

exemptions it claims, failed to meet the requirements of segregability, and the

redactions are overly broad. Id. Sheppard asks the Court to order the DOJ to (1)

disclose the entirety of the requested public records related to and including the

memorandum and all notes, recordings, and transcripts related to the DOJ’s review that

produced the memorandum, and (2) provide support for the exemptions cited, including

an index of the materials withheld and redacted for the Court to inspect in camera. Id.

at 17.

Both parties filed motions for summary judgment. Docs. #18, 27. Those motions

became fully briefed in mid-March 2019. On April 10, 2019, the Court directed the DOJ

to provide all disputed documents to Chambers for an in camera review. Doc. #33. On

May 9, 2019, the DOJ provided two binders of documents to Chambers: (1) a binder

with all unredacted documents and redacted duplicates totaling 829 pages, and (2)

another binder with all unredacted documents and unredacted duplicates totaling 829

pages. Doc. #36.

II. STANDARD

In a FOIA case, the standards set forth in Rule 56 of the Federal Rules of Civil

Procedure apply. Miller v. U.S. Dep’t of Agric., 13 F.3d 260, 262 (8th Cir. 1993).

Summary judgment is proper if “the record shows there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law.” Id. (citing

Fed. R. Civ. P. 56(c) and Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). To

defeat summary judgment, the nonmoving party must “present evidence from which a

6 Earl “Skip” Sheppard passed away in July 2009.

jury might return a verdict in his favor.” Id. (citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 257 (1986)).

“Summary judgment is available to the defendant in a FOIA case when the

agency proves that it has fully discharged its obligations under FOIA.” Miller v. U.S.

Dep’t of State, 779 F.2d 1378, 1382 (8th Cir. 1985). To meet this burden, “the agency

must prove that each document that falls within the class requested either has been

produced, is unidentifiable, or is wholly exempt from the Act’s inspection requirements.”

Id. (internal quotations and citation omitted). “The underlying facts, and the inferences

to be drawn from them, are to be construed in the light most favorable to the FOIA

requester.” Pollack v. U.S. Bureau of Prisons, 879 F.2d 406, 409 (8th Cir. 1989).

“Unlike the review of other agency action that must be upheld if supported by

substantial evidence and not arbitrary or capricious, the FOIA expressly places the

burden “on the agency to sustain its action” and directs the district courts to “determine

the matter de novo.” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press,

489 U.S. 749, 754-55 (1989) (citing 5 U.S.C. § 552).

III. DISCUSSION

A. Parties’ Responses to Facts Asserted in Support of Summary Judgment

Before delving into the substantive issues, the Court must first address the

parties’ responses to the opposing party’s statement of facts. When responding to

Sheppard’s Statement of Material Facts, the DOJ admitted the vast majority of facts,

properly disputed some facts, and attempted to dispute other facts or portions of facts.

Doc. #31, at 2-3. With regard to the DOJ’s attempts to dispute facts or portions of facts,

the DOJ, in several instances, failed to comply with Rule 56 of the Federal Rules of Civil

Procedure and Local Rule 56.1.

First, there are several facts to which the DOJ stated it was without sufficient

information to admit or deny, and therefore, it denied Sheppard’s facts. Doc. #31, at 2-3

(¶¶ 57-58, 96-100, 102-03). Generally, a party disputing a fact cannot claim they lack

information to dispute a fact. Rather, the Federal Rules of Civil Procedure and the

Court’s Local Rules require a party “cite[] to particular parts of materials in the record” to

controvert an assertion of fact. Fed. R. Civ. P. 56(c); L.R. 56.1(b)(1). If a party fails to

specifically controvert the opposing party’s fact, the fact is deemed admitted for

purposes of summary judgment. L.R. 56.1(b)(1). Because the DOJ did not cite to

anything in the record to controvert the facts asserted by Sheppard, these particular

facts are deemed admitted.

Second, the DOJ admits certain parts of Sheppard’s facts but then does not

dispute or address the remainder of those facts. Doc. #31, at 2-3 (¶¶ 28, 29, 42, 48, 60,

62, 66, 67, 72, 87, 94). To the extent the DOJ is disputing Sheppard’s fact because it

does not specifically quote the memorandum, the Court relied on the language

contained in the memorandum. To the extent the DOJ is attempting to dispute the facts

on some other basis, it has failed to properly do so. Fed. R. Civ. P. 56(c); L.R.

56.1(b)(1). Accordingly, these facts are also deemed admitted.

Third, in response to Fact 40, the DOJ admitted a portion of the fact but then

denied the remainder of the fact. Doc. #31, at 2 (¶ 20). However, the DOJ did not cite

anything in the record to support its dispute with the fact. According to the Local Rules,

“[i]f the opposing party controverts a given fact, it must properly support its denial in

accordance with Fed. R. Civ. P. 56(c).” L.R. 56.1(b)(1). Because the DOJ does not cite

anything in the record to controvert the remainder of this fact, it is deemed admitted.

In Sheppard’s response to the DOJ facts, he failed to properly controvert one fact

asserted by the DOJ – Fact 4. While Sheppard disputes a portion of the fact, he does

not cite to anything in the record to support his contention. Thus, Sheppard has not

controverted the fact. L.R. 56.1(b)(1); Fed. R. Civ P. 56(c). Accordingly, the remainder

of this fact is deemed admitted.

B. The Freedom of Information Act

The FOIA “ensure[s] that government is conducted in the open” and “provide[s]

wide-ranging public access to government documents.” Miller, 13 F.3d at 262; Miller,

779 F.2d at 1389. “FOIA represents a carefully balanced scheme of public rights and

agency obligations designed to foster greater access to agency records than existed

prior to its enactment.” Kissinger v. Reporters Comm. for Freedom of the Press, 445

U.S. 136, 150 (1980). The FOIA “requires federal agencies to make Government

records available to the public, subject to nine exemptions for specific categories of

material.” Milner v. Dep’t of Navy, 562 U.S. 562, 564 (2011); see also Taylor v. Sturgell,

553 U.S. 880, 885 (2008); Crancer v. U.S. Dep’t of Justice, 999 F.2d 1302, 1305 (8th

Cir. 1993). The nine exemptions “are ‘explicitly made exclusive,’ and must be ‘narrowly

construed.’” Id. (quoting Fed. Bureau of Investigation v. Abramson, 456 U.S. 615, 630

(1982)).

C. Adequacy of the DOJ’s Search for Documents

Both parties seek summary judgment on the adequacy (or inadequacy) of the

DOJ’s search for documents responsive to Sheppard’s FOIA requests. The adequacy

of an agency’s search for documents responsive to a FOIA request “is judged by a

standard of reasonableness, i.e., the agency must show beyond material doubt...it has

conducted a search reasonably calculated to uncover all relevant documents.” Miller,

779 F.2d at 1383 (internal quotations and citation omitted). “[T]he search need only be

reasonable; it does not have to be exhaustive.” Id. (citation omitted). The adequacy of

the search “must be determined in relation to the circumstances of the case.” Id. at

1385.

The agency may establish its search was reasonable “through affidavits of

responsible agency officials so long as the affidavits are relatively detailed,

nonconclusory, and submitted in good faith.” Id. at 1383 (citation omitted); see also

Pollack, 879 F.2d at 409.

Despite this weight to be accorded to agency affidavits, the burden

remains on the government to demonstrate that it has thoroughly

searched for the requested documents where they might reasonably be

found. If the agency has not made this showing, then the requester can

avert a motion for summary judgment merely by demonstrating some

reason to think that the document would have turned up if the agency had

looked for it, e.g., by showing that the document originated with the

agency or that the agency is set up to retrieve just that kind of document.

But once the agency has shown by convincing evidence that its search

was reasonable, i.e., that it was especially geared to recover the

documents requested, then the burden is on the requester to rebut that

evidence by a showing that the search was not in fact in good faith.

Id. (internal citations omitted). According to the Eighth Circuit, granting summary

judgment in favor of the agency “would be improper if the adequacy of the agency’s

search [was] materially disputed on the record, for such a dispute would indicate that

material facts were still in doubt.” Id. Also, if the FOIA requestor shows circumstances

indicating additional search procedures were available without the agency “having to

expend more than reasonable effort, then summary judgment would be improper.” Id.

at 1385.

The DOJ claims it made a good faith effort to search for responsive materials,

and provides a declaration explaining the scope and method of the DOJ’s search. Doc.

#21-1, at 4-6. In response to the Star’s second FOIA request, which is similar to

Sheppard’s second FOIA request, the FOIA/PA Unit sent out search requests to two

units in the Criminal Division (i.e., OCGS and CCU), the Office of the Assistant Attorney

General, and a Deputy Assistant Attorney General. Doc. #21-1, at 4-6; Doc. #31, at 4.

Because the Criminal Division investigated the allegations of prosecutorial

misconduct, the DOJ “gathered and created a smaller limited universe of documents

and records, consisting mainly of prior witness statements, memoranda of interviews,

several preliminary ‘drafts’ of the investigative report, and the ‘final’ investigative report

as completed.” Doc. #31, at 5. According to the DOJ, “[b]ecause this was not a retrial

of the underlying criminal case, [the DOJ] had a significantly smaller number of records

in its possession.” Id.

Sheppard argues the DOJ has failed to show it conducted an adequate search.

Doc. #27-1, at 25-26; Doc. #32, at 2-3. Sheppard contends the DOJ should not have

limited its search to certain locations. Doc. #32, at 3. He points out the DOJ conducted

an “extensive investigation” over three years yet the DOJ indicates the review team only

relied on 432 pages. Doc. #27-1, at 26. Also, Sheppard observes a number of

documents are referenced in the memorandum (e.g., AUSA Becker’s files, the trial

transcript, Barchers’s ATF file, three tapes) but are not included in the DOJ’s Vaughn

index.7 Doc. #32, at 2. Although the DOJ received four FOIA requests, Sheppard notes

the DOJ searched for records responsive to only two requests, and he contends the

7 The DOJ’s Vaughn index is discussed more fully, infra section III(D)(1).

DOJ should have searched for responsive records when it received each request. Doc.

#27-1, at 26 Doc. #32, at 3 (noting the DOJ, when responding to Sheppard’s summary

judgment motion, contradicted the affidavit previously submitted by dening no new

search was conducted).

Sheppard also directs the Court’s attention to the DOJ’s representation that the

memorandum was “forwarded up the DOJ’s chain of command, where it was reviewed

for sufficiency at multiple levels, including immediate superior, the Chief of the Unit, the

Office of the Deputy Attorney General and other decision-makers in the final review

process.” Doc. #31, at 10. Yet, the DOJ does not inform the Court that search requests

were sent to any of these individuals. Id.; Doc. #27-1, at 26.

Finally, Sheppard maintains the DOJ failed to establish it conducted an adequate

search because much is unknown about the search. According to Sheppard, the

following details about the search are unknown: (1) where the boxes containing

responsive documents were located, (2) whose files were searched, (3) whether the

files of the memorandum’s authors were searched, (4) whether electronic searches

were conducted or only hard copy searches, (5) why certain search terms were used

but other terms were not used to search, (6) whether any employees were interviewed

to determine where responsive records may be located, and (7) whether any searches

were made or requested of the Office of the Inspector General. Doc. #27-1, at 25-26.

In response to Sheppard’s arguments, the DOJ does not address the multiple

unknowns identified by Sheppard. The DOJ again points out the FOIA/PA Unit sent a

search request to the OCGS, the CCU, the Office of the Assistant Attorney General,

and “[o]ne Deputy Assistant Attorney General.” Doc. #31, at 4. The DOJ also informs

the Court “[t]he search terms included ‘Kansas City,’ ‘KC,’ ‘Firefighters Case,’ ‘United

States v. Sheppard’ and ‘subpoena.’” Id. Beyond these two representations, no

additional information about the search is provided by the DOJ, and the questions

raised by Sheppard remain unanswered.

Instead, the DOJ relies on a Fourth Circuit decision to support its position that it

conducted an adequate search. Doc. #31, at 5 (citing Rein v. U.S. Patent & Trademark

Office, 553 F.3d 353 (4th Cir. 2009)). As proscribed by the FOIA and similar to the

Eighth Circuit, Rein states “an agency shall make reasonable efforts to search for the

records in electronic form or format….” Rein, 553 F.3d at 359 (quoting 5 U.S.C. §

552(a)(3)(C)). An agency’s search “means to review, manually or by automated means,

agency records for the purpose of locating those records which are responsive to a

request.” Id. (quoting 5 U.S.C. § 552(a)(3)(D)). Beyond stating an agency’s search

must be reasonable and the agency must review records to locate responsive records,

Rein does not support the DOJ’s argument that its search was adequate.

In Rein, the United States Patent and Trademark Office (“USPTO”) detailed the

scope and nature of its search for records responsive to a FOIA request by providing

interrogatory answers and declarations from its FOIA’s Officer. Id. at 359. The FOIA

Officer explained the request to search records “was sent to six offices he determined

were “likely to have any responsive documents.” Id. He informed the Court that the

requests “were crafted to maximize the inclusion of as many responsive documents as

possible.” Id. at 360. In that regard, the employees were requested to do the following:

[C]onduct thorough paper and electronic searches using: (1) the FOIA

request(s) provided to them; (2) an electronic keyword search list that [the

FOIA Officer] provided that included cues found in the basic FOIA

requests such as law firm names, company names, relevant patent

numbers, federal agency names, as well as several additional related

words or phrases [the FOIA Officer] conceived for the search request that

were not specifically mentioned in any of the FOIA requests, but might

have produced responsive records, (e.g., isolated terms such as “NTP,”

and alternate spellings such as [“]Re–Exam,” for “Reexamination” etc.);

and (3) instructions to employ any other conceivable search formulation

not listed in the search request that might turn up responsive documents.

Id. Additionally, “employees were instructed to provide ‘any and all other

documentation’ relating to the NTP reexamination that was not specifically described in

the FOIA requests, but which was ‘responsive to the topic of interest expressed

therein.’” Id. Employees were informed the provided search terms were “by no means

all-inclusive,” “were instructed not to ‘limit searches to only the above-listed keywords,’”

search “using all spelling variants,” and account for misspellings. Id. The employees

were given “[e]xamples of variations in search terms and potentially responsive

communications.” Id.

In addition to the measures identified above, the FOIA Officer also had searches

performed on “remnants of e-mail accounts of several former [USPTO] employees...who

might have had any connection” to records sought in the FOIA request. Id. He also

“personally supervised some of the searches…as a spot-checking measure to ensure

that search instructions were being followed and the methods employed were

adequate.” Id. And he “consulted with other FOIA coordinators to monitor the status of

searches and identify ‘possible additional locations of responsive records.’” Id. After

the FOIA Officer received some interim disclosures of responsive documents, he

reexamined the FOIA request and “determined that the request appeared to specify a

few additional items that may not have been definitively included in” the search requests

that were sent. Id. Consequently, the FOIA Officer sent a “broadened search request

to three of the offices that had received the original search” and an additional office that

did not receive the initial request. Id. at 360-61. When the FOIA Officer received any

documents responsive to FOIA requests, he reviewed the documents, determined

whether the documents were responsive to the FOIA request, removed duplicate

documents, and determined what documents should be redacted or withheld based on

an exemption. Id. at 362. If the FOIA Officer received incomplete searches from some

units, he followed up with those units. Id.

Unlike the declaration in Rein, the DOJ’s declaration, with few exceptions, does

not provide specifics about the nature and scope of its search. The DOJ identified

OCGS as the section “most likely to maintain responsive records.” But the DOJ

provides little information about the “search request” it sent to OCGS. What is known

about the request is (1) it was made on September 15, 2011; (2) the FOIA/PA Unit’s

standard practice was used (i.e., providing a form memorandum telling the recipient to

review the FOIA request, search all records and file systems, use the attached sheet

advising the DOJ of any files located, and make copies of all records); and (2) “three

boxes of records were returned” by OCGS on September 26, 2011. Doc. #21-1, at 4-5.

No additional information is provided. By way of example, the declaration does not

identify which individuals in the OCGS received the records request. Similarly, the

declaration is silent as to which offices, locations, and/or units of the OCGS received the

records request.

Additionally, regarding OCGS, the declaration does not indicate, for example, the

types of searches that were conducted; the parameters of the searches; whether

electronic and/or physical documents were searched; the custodians whose documents

(electronic and/or physical) were searched; and the shared files (electronic or hardcopy)

and/or shared computer drives that were searched. To the extent email or other

electronic searches were conducted, the declaration does not indicate if search terms

were provided to OCGS, what search terms were used, whether the search terms

provided for potential misspellings, and the date range of the search.8

Although the review team consisted of, at the time, an employee from the

Criminal Division and an employee from the Office of Inspector General, the DOJ’s

declaration does not provide information indicating records requests were sent to the

review team members. Further, the DOJ’s declaration does not demonstrate the

memorandum’s authors, other individuals who investigated and/or participated in the

Star’s allegations, the individuals who provided documents to the review team, the

individuals who reviewed and/or revised the memorandum, and the recipients of the

memorandum received records requests and searched for responsive records.

Although the memorandum indicates the review team “reviewed post-trial affidavits by

several individuals” (Doc. #21-1, at 31), no post-trial affidavits were provided to the

Court in the DOJ’s in camera submission, and the Vaughn index does not list any post-

trial affidavits. As a result, the Court does not know who received a records requests,

and if the proper individuals received a records request.

8 With regard to the search request sent to the CCU, the DOJ provides additional

information. Specifically, the DOJ informs the Court that the search request to CCU

was for “potentially responsive records of one former OCGS staff member,” identifies

the sources searched, provides the timeframe that the search targeted, and listed the

search terms. Doc. #21-1, at 5. However, the DOJ did not identify the former OCGS

staff member; the date range searched (June 2011 to February 2012), which does not

cover the timeframe during the investigation, is not explained; and it is unclear if the

search terms were fixed and/or allowed for misspellings.

While the DOJ’s declaration does not need to describe “with meticulous

documentation the details of an epic search for requested records,” the DOJ’s

declaration should have “describe[d] what records were searched, by whom, and

through what process” and demonstrated “the search was reasonably calculated to

uncover all relevant documents.’” Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp.

2d 83, 91 (D.D.C. 2009) (citation omitted); see also Nation Magazine, Wash. Bureau v.

U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (quoting Defs. of Wildlife, 623 F.

Supp. 2d at 91). In addition, the DOJ’s declaration failed to “explain the scope and

method of [its] search in a non-conclusory fashion.” Hooker v. U.S. Dep’t of Health &

Human Servs., 887 F. Supp. 2d 40, 51-52 (D.C. Cir. 2012), aff’d, No. 13-5280, 2014 WL

3014213 (D.C. Cir. May 13, 2014). Based upon the evidence presented to this Court,

the DOJ has not met its burden of establishing “beyond material doubt...it has

conducted a search reasonably calculated to uncover all relevant documents.” Miller,

779 F.2d at 1383.9

9 See also Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (vacating the

district court’s entry of summary judgment on the adequacy of the search because the

Department of State’s affidavit did not adequately describe its search for records, and

directing the Department of State to submit a reasonably detailed affidavit upon

remand); Roseberry-Andrews v. U.S. Dep’t of Homeland Sec., 299 F. Supp. 3d 9, 23-25

(D.D.C. 2018) (finding the agency failed to establish its search was adequate because,

inter alia, the declaration did not provide search terms for two offices, and failed to

explain why other offices used inconsistent terms); Nat’l Sec. Counselors v. Cent.

Intelligence Agency, 960 F. Supp. 2d 101, 152-53 (D.D.C. 2013) (finding the CIA failed

to establish its search was adequate because its declaration did not state “whether the

CIA searched for the indices themselves or what search terms the CIA used to identify

responsive records” and did “not provide sufficient information for the Court to conclude

that its search methods were reasonably calculated to uncover all relevant

documents.”); Hooker, 887 F. Supp. 2d at 51-52 (finding the agency’s description of the

search was “too cursory to persuade the court that the search was adequate” and

noting, among other things, the agency’s declaration identified the offices to which the

search requests were sent but did not describe the search methodology used, what

records were searched, who searched the records, and the process or search terms);

Hall v. Cent. Intelligence Agency, 881 F. Supp. 2d 38, 59-60 (D.D.C. 2012) (denying

summary judgment for the CIA and granting summary judgment in favor of plaintiff

because the CIA only searched the systems “most likely” to contain responsive

documents, and did not search all systems “likely to produce responsive documents.”).

Due to the lack of information provided by the DOJ, the Court cannot determine

whether its search was adequate. Accordingly, the Court denies without prejudice the

DOJ’s motion for summary judgment on the issue of the adequacy of its search. If the

DOJ wishes to file a renewed motion for summary judgment, it shall do so within sixty

days of this Order. See Roseberry-Andrews v. U.S. Dep’t of Homeland Sec., 299 F.

Supp. 3d 9, 25 (D.D.C. 2018) (noting DHS may support its renewed motion for summary

judgment by either conducting additional searches or provide additional representations

describing the previously conducted searches). Because Sheppard’s cross-motion for

summary judgment on the adequacy of the search directly responds to the DOJ’s

summary judgment motion and its declaration in support thereof, the Court views it as

an “opposition” to the DOJ’s motion for summary judgment, rather than a cross-motion

for summary judgment. To the extent it is a cross-motion for summary judgment, it is

denied without prejudice.

D. Withholding of Documents and Information

FOIA requires an agency disclose requested records unless a record falls within

one of nine exemptions. “These exemptions are explicitly made exclusive and must be

narrowly tailored.” Hulstein v. Drug Enf’t Admin., 671 F.3d 690, 694 (8th Cir. 2012)

(quoting Milner, 562 U.S. at 565). The DOJ applied four exemptions to withhold certain

documents and information from release in response to Sheppard’s request:

Exemptions 5, 6, 7(C), and 7(D). The DOJ also provided a Vaughn index. Doc. #22-1.

(1) The DOJ’s Vaughn Index

To assist courts in determining whether an agency has satisfied its burden under

the FOIA, a Vaughn index may be used. Mo. Coal. for Env’t Found. v. U.S. Army Corps

of Eng’rs, 542 F.3d 1204, 1209 (8th Cir. 2008) (citation omitted). “The Vaughn court

recognized the problems associated with FOIA requests for claimed-exempt

documentation, including the requesting party’s inability to advocate its position in light

of its lack of knowledge and the court’s difficulty reviewing massive documentation.” Id.

(citing Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973)). A Vaughn index

“ensure[s] an ‘effectively helpless’ party’s right to information ‘is not submerged beneath

governmental obfuscation and mischaracterization’” and allows courts to “effectively and

efficiently…evaluate the factual nature of disputed information.” Id. (quoting Vaughn,

484 F.2d at 826).

“[A] proper Vaughn index provides a specific factual description of each

document sought by the FOIA requester. Specifically, such an index includes a general

description of each document’s contents, including information about the document’s

creation, such as date, time, and place.” Id. If the agency claims a document is

exempt, the exemption must be identified, and the agency must explain why the

exemption applies to the document. Id. at 1209-10 (citation omitted).

Other than the DOJ’s failure to include in its Vaughn index those documents

referenced in the memorandum, Sheppard does not argue the DOJ’s Vaughn index is

not sufficient. For each document, the DOJ’s Vaughn index provides the caption, title,

or a description of the document; the author of the document (if known); the recipient(s)

- generally (e.g., “CRM Review Team Atty.”) or by name - of the documents; date of the

document (if known); the FOIA exemption(s) claimed; whether the document was

withheld in full or redacted in part; the basis for the withholding or redaction; and length

of the document. Doc. #22-1. The DOJ’s Vaughn index contains the identifying

information, identifies the exemption(s) claimed, and provides an explanation for the

exemption(s) claimed.

However, the Court notes some discrepancies in the DOJ’s Vaughn index. First,

in the descriptions of Documents 52 through 68, the DOJ states these documents are

withheld in full. Doc. #22-1, at 65-80. But the DOJ marks the column labeled “RIP,”

which indicates the document was “released in part.” Id. at 1, 65-80. The DOJ’s

declaration does not shed light on the situation because it states Documents 52 through

68 (and others) were “released in full, withheld in part, and/or withheld in full.” Doc.

#21-1, at 9. However, the declaration later states Documents 52 through 68 “were

segregated, and released in part in response to Plaintiff’s FOIA requests.” Id. at 21.

Based upon the DOJ’s differing representations, it is unclear if these records were

withheld in full or released in part. Unlike Document 69, for which the DOJ provided the

redacted version (Doc. #21-1, at 25-44) that was produced to Plaintiff and submitted the

unredacted version to the Court for in camera review, the DOJ does not identify which

portions, if any, of Documents 52 through 68 (which range from a few pages to 78

pages) were released.

Second, the Court notes the DOJ’s Vaughn index indicates Documents 42, 45,

46, and 51 each contain one Memorandum of Investigation. Doc. #22-1, at 53-54, 57-

59, 64-65. However, the DOJ’s in camera submission of these documents did not

include only one Memorandum of Investigation. Document 42 contains two, Documents

45 and 46 contain three, and Document 51 contains eight. While some of the additional

memoranda may be duplicates of other documents, the additional memoranda are not

duplicative of the memorandum first appearing in each Document. Additionally, Vaughn

index indicates each document consists of one or two pages, but because each

document contains multiple memoranda, there are more than one or two pages

contained in each document.

Third, with regard to Documents 56, 58, 59, 60, 61, 62, 64, and 68 provided to

the Court for in camera review, the DOJ supplied the email described in the Vaughn

index. The DOJ also provided the attachments to each email. However, the Vaughn

index does not identify the attachments to each email, explain why the attachments are

being withheld, and/or indicate the length of the attachments.

Finally, Document 63 is an email that purportedly encloses attachments. The

attachments were not provided to the Court. Further, the attachments are not identified

in the Vaughn index, the DOJ does not explain with the attachments are being withheld,

and the DOJ does not indicate the length of the attachments.

As noted supra, the purpose of the Vaughn index is to provide Sheppard with

sufficient information so that he is able to advocate his position. Mo. Coal. for Env’t

Found., 542 F.3d at 1209. The Vaughn index should also allow the Court to “effectively

and efficiently…evaluate the factual nature of disputed information.” Id. While the

Court has the benefit of viewing the documents, at least those documents submitted, in

camera, Sheppard does not have that benefit. Moreover, with regard to the documents

that were released in part (Documents 52 through 68), the Court has not been provided

sufficient information to determine what portions were released, and if the portions that

were withheld were properly withheld. Accordingly, the DOJ shall submit an amended

Vaughn index that addresses the discrepancies identified by the Court. The DOJ’s

amended Vaughn index shall be filed within fourteen days of this Order.10

(2) Executed Privacy Waivers

Generally speaking, Exemption 6 and Exemption 7(C) protect a person’s right to

privacy. Before addressing the specifics of both exemptions,11 the Court must consider

whether a person may waive his/her right to privacy in his/her name and personal

information in the requested records, and if so, does the executed waiver override the

exemption.

Pursuant to the Privacy of 1974, 5 U.S.C. § 552a, Sheppard provided the DOJ

with an executed privacy waiver authorizing the DOJ “to release any…information,

statements, and/or documents to the parties to [this matter] and to the public.” Doc.

#27-2, at 44. During the briefing of the parties’ summary judgment motions, Plaintiff

filed privacy waivers executed by Debra Cearley, Joe Denger, Buster Lee Hower, Mike

DeMaggio, Carrie Neighbors, Shannon Neighbors, Nadine Smith, Patti Smith, Larry

Summers, Orval Alan Bethard, Richard Wayne Brown, Darlene Marie Edwards, and

George Frank Sheppard. Doc. #27-2, at 45-53; Doc. #32-1, at 3-6.12 Sheppard argues

10 To the extent the DOJ’s amended Vaughn index changes the documents submitted to

the Court for in camera review in any way (e.g., numbering, supplemental documents,

etc.), the DOJ shall provide the updated and/or supplemental documents to the Court

contemporaneously with the filing of its amended Vaughn index.

11 Exemption 7 prevents the release of records or information if disclosure “could

reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5

U.S.C. § 552(b)(7). Exemption 6 pertains to “personnel and medical files,” which must

be withheld if disclosure “would constitute a clearly unwarranted invasion of personal

privacy.” § 552(b)(6). “The adverb ‘clearly,’ found in Exemption 6, is not used in

Exemption 7(C). In addition, whereas Exemption 6 refers to disclosures that would

constitute an invasion of privacy, Exemption 7(C) encompasses any disclosure that

could reasonably be expected to constitute’ such an invasion.” Nat’l Archives &

Records Admin. v. Favish, 541 U.S. 157, 165-66 (2004) (internal quotations and citation

omitted).

12 It is unclear if these privacy waivers were submitted to the DOJ through its FOIA

process, or if the privacy waivers were only filed on ECF.

a right to privacy is a personal right that can be waived by the individual. Doc. #27-1, at

35-36. He contends any exemption that rests on preserving a third party’s right to

privacy cannot be upheld when a knowing and voluntary waiver of that right is provided.

Id. at 36.

In response to Sheppard’s argument, the DOJ contends Sheppard did not cite to

any authority supporting his argument that an individual may waive his/her right to

privacy, and the FOIA exemptions cannot be disregarded with waiver. Doc. #31, at 16.

The DOJ states, “[h]ad Congress intended such a result, it would have included a right

to waiver in FOIA. It did not.” Id. In reply, Sheppard refers to the right of an individual

to waive his or her right to privacy as being fundamental, and therefore, he did not

believe citations were required. Doc. #32, at 8. He cites to legal authority in his reply

brief. Id. at 8-9 (citation omitted). The DOJ did not seek leave to respond to the

authority cited by Sheppard in his reply brief.

Although not cited by either party, the DOJ’s own regulations, which “contain[]

the rules” the DOJ “follows in processing requests for records” under the FOIA, explicitly

allow a FOIA requester to submit a notarized authorization or declaration signed by the

third party permitting the DOJ to disclose records related to the third party to the FOIA

requester. 28 C.F.R. §§ 16.1(a), 16.3(a)(4). The DOJ regulation also states the DOJ

may require the FOIA requester to “supply additional information if necessary in order to

verify that a particular individual has consented to disclosure.” Id. § 16.3(a)(4).

Although the DOJ regulation alone allows Sheppard to submit privacy waivers

executed by third parties, privacy waivers in FOIA matters have been discussed in

many cases. In numerous instances, a FOIA request was accompanied by or

supplemented with a privacy waiver executed by the third-party about whom the FOIA

requester sought information. See, e.g., Stein v. U.S. Dep’t of Justice, 134 F. Supp. 3d

457, 467 (D.D.C. 2015); Light v. U.S. Dep’t of Justice, 968 F. Supp. 2d 11, 28-29

(D.D.C. 2013); Seme v. Fed. Bureau of Investigation, 892 F. Supp. 2d 77, 80 (D.D.C.

2012); Nat’l Whistleblower Ctr. v. Dep’t of Health & Human Servs., 849 F. Supp. 2d 13,

34 (D.D.C. 2012); Brown v. U.S. Dep’t of Justice, 742 F. Supp. 2d 126, 130 (D.D.C.

2010); McCoy v. United States, No. CIVA 1:04CV101, 2006 WL 2459075, at *3 (N.D.

W. Va. Aug. 23, 2006). In other cases, the courts noted the government agency

informed the FOIA requester that it would not release information about a third-party

unless it received an executed privacy waiver from the third-party. See, e.g., Gatson v.

Fed. Bureau of Investigation, No. CV 15-5068, 2017 WL 3783696, at *11 n.16 (D. N.J.

Aug. 31, 2017), aff’d, No. 17-3122, 2019 WL 3451182 (3d Cir. July 31, 2019); Jett v.

Fed. Bureau of Investigation, 139 F. Supp. 3d 352, 358 (D.D.C. 2015); Dillon v. U.S.

Dep’t of Justice, 102 F. Supp. 3d 272, 279 (D.D.C. 2015); Calle v. Fed. Bureau of

Investigation, No. 3:10-CV-2362, 2011 WL 3820577, at *1 (N.D. Tex. Aug. 5,

2011), report and recommendation adopted, No. 3:10-CV-2362-M, 2011 WL 3837031

(N.D. Tex. Aug. 26, 2011); Schulze v. Fed. Bureau of Investigation, No. 1:05-CV-0180,

2010 WL 2902518, at *3 (E.D. Cal. July 22, 2010); Calvert v. United States, 662 F.

Supp. 2d 27, 29-30 (D.D.C. 2009); Garcia v. U.S. Dep’t of Justice, Office of Info. &

Privacy, 181 F. Supp. 2d 356, 363-64 (S.D.N.Y. 2002).

Contrary to the DOJ’s arguments, Sheppard, and any individual or entity seeking

documents from the DOJ pursuant to FOIA, may provide privacy waivers executed by

individuals whose names and information may be included in the requested records.

Although thirteen executed privacy waivers have been provided to the DOJ, the record

before the Court does not demonstrate the DOJ has reprocessed Sheppard’s FOIA

request. See Light, 968 F. Supp. 2d at 28-29 (stating the FBI reviewed the responsive

records for the names and information associated with nine individuals who executed

privacy waivers); Boyd v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, No. CIV

A 05-1096 RMU, 2006 WL 2844912, at *2 (D.D.C. Sept. 29, 2006) (noting that once the

privacy waivers were received, the agency could release the requested records “this

time with the previously redacted names and identifying information of the people who

executed waivers included.”).

Given the DOJ’s regulation and the case cited above, the Court is not persuaded

by the DOJ’s argument. The Court directs the DOJ to reprocess Sheppard’s FOIA

request in light of the privacy waivers executed by Debra Cearley, Joe Denger, Buster

Lee Hower, Mike DeMaggio, Carrie Neighbors, Shannon Neighbors, Nadine Smith, Patti

Smith, Larry Summers, Orval Alan Bethard, Richard Wayne Brown, Darlene Marie

Edwards, and George Frank Sheppard. Within thirty days of the date of this Order, the

DOJ shall produce the results of its reprocessing of the FOIA request.

(3) Claimed Exemptions

As outlined above, the Court has outlined matters that need to be addressed by

the DOJ regarding the adequacy of its search, its Vaughn index, and the executed

privacy authorizations. To rectify the issues identified by the Court, the DOJ will be

providing, at a minimum, an amended declaration and an amended Vaughn index, and

producing documents (or portions of documents) to Plaintiff containing information

about the third parties who executed privacy waivers. Unless and until the above-

mentioned concerns are addressed, the Court cannot analyze the DOJ’s application of

exemptions or determine whether reasonably segregable portions of records were

provided to Sheppard. Accordingly, the parties’ motions for summary judgment on the

issues of the DOJ’s withholding of documents, application of exemptions, and

segregability are denied without prejudice.

If the DOJ wishes to renew its motion for summary judgment or file a new motion

for summary judgment, it shall file said motion within sixty days after this Order is

entered. To ensure the most efficient use of the parties’ and the Court’s time and

resources, Sheppard may file a cross-motion for summary judgment in response to the

DOJ’s summary judgment, instead of contemporaneously filing a motion for summary

judgment. Sheppard’s cross-motion shall be filed within twenty-one days of the DOJ’s

motion for summary judgment. If the DOJ does not file a motion for summary judgment,

Sheppard, if he so desires, may file a motion for summary judgment within eighty-one

days of this Order. This timeframe allows for the DOJ to file its motion for summary

judgment, and if it does not, Sheppard will have twenty-one to finalize his motion.

Although the Briefing Schedule provided the parties significantly more time than

the Local Rules provide for briefing summary judgment motions, the parties sought and

were granted numerous extensions of time when briefing the summary judgment

motions addressed in this Order. Docs. #16-17, 23-26, 28-29, 34-35. Regarding the

parties’ future summary judgment motions, the parties shall follow the Court’s Local

Rule 7.0 regarding response and reply deadlines. While the Court will be open to

granting extensions of time, it is not inclined to grant significant extensions of time.

IV. CONCLUSION

For the foregoing reasons, the Court denies both parties’ motions for summary

judgment without prejudice. Within fourteen days of this Order, the DOJ shall file an

amended Vaughn index. Within thirty days of this Order, the DOJ shall reprocess

Sheppard’s FOIA request in light of the privacy waivers filed by Sheppard. Finally, if the

DOJ wishes to file a renewed motion for summary judgment, it shall do so within sixty

days of this Order. Sheppard shall file any cross-motion for summary judgment within

twenty-days of this Order, or if the DOJ does not file a motion for summary judgment,

Sheppard shall file his motion for summary judgment within eighty-one days of this

Order.

IT IS SO ORDERED.

/s/ Ortrie D. Smith

ORTRIE D. SMITH, SENIOR JUDGE

DATE: August 6, 2019 UNITED STATES DISTRICT COURT