Hardy v. Bureau of Alcohol, Tobacco, Firearms & Explosives, Civil Action No. 15-1649 (BAH)

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: BERYL A. HOWELL, Chief Judge
• Citation: 243 F.Supp.3d 155
• Decision Date: 22 March 2017
• Docket Number: Civil Action No. 15-1649 (BAH)
• Parties: David T. HARDY, Plaintiff, v. BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, et al., Defendants.

243 F.Supp.3d 155

David T. HARDY, Plaintiff,
v.
BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, et al., Defendants.

Civil Action No. 15-1649 (BAH)

United States District Court, District of Columbia.

Signed March 22, 2017

243 F.Supp.3d 159

Alan Alexander Beck, San Diego, CA, Stephen D. Stamboulieh, Stamboulieh Law, PLLC, Madison, MS, for Plaintiff.

Joshua M. Kolsky, Heather D. Graham-Oliver, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The plaintiff, David T. Hardy, a self-described "attorney and internet blogger who disseminates information relating to firearms law issues," Compl. ¶ 4, ECF No. 2, initiated this lawsuit against the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), the Department of Justice ("DOJ") and DOJ's Office of Inspector General ("OIG"), claiming that the agencies violated the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522, by improperly withholding responsive documents he requested regarding ATF's policies on registered handguns and certain documents "given to" OIG "in connection with" an OIG report on ATF's National Firearms Registration and Transfer Record ("NFRTR"). See Compl. ¶¶ 10, 18, 21. Pending before the Court are the defendants' Motion for Summary Judgment, Defs.' Mot. Summ. J. ("Defs.' Mot."), ECF No. 22, and the plaintiff's cross-motion for summary judgment, Pl.'s Cross-Mot. Summ. J. and Opp'n to Defs.' Mot. ("Pl.'s Opp'n") at 1, ECF No. 24. For the reasons stated below, both motions are granted in part and denied in part.¹

I. BACKGROUND

On March 18, 2015, OIG received a FOIA request from the plaintiff seeking "any statements, surveys, or reports of interviews given" to OIG "in connection with OIG Report No. I-2007-006," titled "The Bureau of Alcohol, Tobacco, Firearms and Explosives' National Firearms Registration and Transfer Record, June

243 F.Supp.3d 160

2007," (the "NFRTR Report"), which had been prepared by OIG's Evaluation and Inspections Division. Compl., Ex. 3, FOIA Request to OIG, ECF No. 2-3; Defs.' Mot., Ex. 2, Decl. of Deborah M. Waller ("Waller Decl.") ¶ 3, ECF No. 22-2, and Ex. 4, NFRTR Report, ECF No. 22-4.² The report gathered information about the NFRTR ("NFRTR"), an electronic database that contains records on almost two million weapons regulated by the National Firearms Act ("NFA"). NFRTR Report at 2. OIG examined ATF's "effectiveness in maintaining the records of registrations and transfers of NFA weapons in the NFRTR ... in response to requests from members of Congress who had received letters from citizens expressing concern about the accuracy and completeness of the NFRTR." Id. at 3. OIG's review included interviews, data analyses and document reviews, an electronic survey, a site visit to an NFA Branch, which is responsible for maintaining the NFRTR, and a demonstration of the NFRTR database. Id. at 24-26.

According to both parties, the requested records at issue fall into one of three categories: "(1) records of interviews and notes of telephone interviews, (2) survey results, a draft survey, survey data summaries, and survey data analysis, and (3) miscellaneous work papers, including indexes of materials and interviews; and summaries of a document and emails that were reviewed." Defs.' Mot., Ex. 3, Decl. of Nina S. Pelletier ("Pelletier Decl.") ¶ 5, ECF No. 22-3;³ see also Pl.'s Response to Defs.' Stmt. Of Undisputed Material Facts & Pl.'s Stmt. Of Material Facts. Supp. Cross-Mot. Summ J. ("Pl.'s SUMF") at 3, ECF No. 24.

In August 2015, OIG prepared a response to the plaintiff's request, advising that OIG deemed the responsive records "reflect[ive] of the deliberative processes of the OIG" and exempt from disclosure pursuant to the "deliberative process" privilege under Exemption 5 of FOIA but, due to a clerical error, this letter was not actually delivered to the plaintiff until after litigation had already commenced. Waller Decl. ¶¶ 5–6; see also 5 U.S.C. § 552(b)(5) ("Exemption 5") (exempting materials that are "pre-decisional" and "deliberative").

In January 2016, after litigation in this matter had begun, OIG reviewed sixty documents related to the NFRTR Report and "determined that portions of the records that were directly quoted in the final report could be segregated and released without compromising the deliberative processes of the OIG." Waller Decl. ¶ 7. The following month, on February 26, 2016, OIG provided the plaintiff approximately forty pages of highly redacted documents, consisting of records of interviews from which OIG redacted the location, the participants, the inspector, and nearly all of the summaries of discussion during the interview, see Pl.'s Mot., Ex. 1 at 1–21, ECF No. 24-1, along with an index of responsive records withheld under claim of exemption, pursuant to Vaughn v. Rosen , 484 F.2d 820 (D.C. Cir. 1973) (the " Vaughn Index"), Waller Decl. ¶ 7; Pl.'s SUMF at 4, ¶¶ 5–6.⁴ The Vaughn Index reflects the

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withholding, in whole or in part, by OIG of sixty responsive documents totaling 511 pages, primarily on the basis of the deliberative process privilege under Exemption 5. See Defs.' Mot., Ex. 6, Vaughn Index, ECF No. 22-2.

The plaintiff contends that OIG has improperly withheld documents under Exemption 5. Pl.'s Opp'n at 8–16.⁵ If application of this exemption is not declared improper, the plaintiff requests that the Court conduct an in camera review of the withheld documents, starting with a sample of 79 pages, to determine whether they were properly withheld. Id. at 16.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV . P. 56(a). The moving party bears the burden of demonstrating the "absence of a genuine issue of material fact" in dispute, Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), while the nonmoving party must present specific facts supported by materials in the record that would be admissible at trial and that could enable a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. ("Liberty Lobby") , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Allen v. Johnson , 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on summary judgment, appropriate inquiry is "whether, on the evidence so viewed, ‘a reasonable jury could return a verdict for the nonmoving party’ " (quoting Liberty Lobby , 477 U.S. at 248, 106 S.Ct. 2505 )). "[T]hese general standards under [R]ule 56 apply with equal force in the FOIA context," Washington Post Co. v. U.S. Dep't of Health & Human Servs. , 865 F.2d 320, 325 (D.C. Cir. 1989), and the D.C. Circuit has observed that " ‘the vast majority of FOIA cases can be resolved on summary judgment,’ " Brayton v. Office of U.S. Trade Representative , 641 F.3d 521, 527 (D.C. Cir. 2011).

The FOIA was enacted "to promote the ‘broad disclosure of Government records' by generally requiring federal agencies to make their records available to the public on request." DiBacco v. U.S. Army , 795 F.3d 178, 183 (D.C. Cir. 2015) (citing U.S. Dep't of Justice v. Julian , 486 U.S. 1, 8, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988) ). Reflecting the necessary balance between the public's interest in governmental transparency and "legitimate governmental and private interests that could be harmed by release of certain types of information," United Techs. Corp. v. U.S. Dep't of Def. , 601 F.3d 557, 559 (D.C. Cir. 2010) (alteration adopted) (quoting Critical Mass Energy Project v. Nuclear Regulatory Comm'n , 975 F.2d 871, 872 (D.C. Cir. 1992) ), the FOIA contains nine exemptions set forth in 5 U.S.C. § 552(b), which "are ‘explicitly made exclusive,’ ..., and must be ‘narrowly construed,’ " Milner v. U.S. Dep't of Navy , 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (quoting Envtl. Prot. Agency v. Mink , 410 U.S. 73, 79, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), and FBI v. Abramson , 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982) ); see

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also Murphy v. Exec. Office for U.S. Attorneys , 789 F.3d 204, 206 (D.C. Cir. 2015) ; Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice ("CREW") , 746 F.3d 1082, 1088 (D.C. Cir. 2014) ; Pub. Citizen, Inc. v. Office of Mgmt. & Budget , 598 F.3d 865, 869 (D.C. Cir. 2010). "[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Dep't of Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976).

In litigation challenging the sufficiency of "the release of information under the FOIA, ‘the agency has the burden of showing that requested information comes within a FOIA exemption.’ " Pub. Citizen Health Research Grp. v. FDA , 185 F.3d 898, 904 (D.C. Cir. 1999) (quoting Niag a ra Mohawk Power Corp. v. U.S. Dep't of Energy , 169 F.3d 16, 18 (D.C. Cir. 1999) ); see also Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill , 443 U.S....