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Widi v. McNeil

United States District Court, D. Maine

May 8, 2017

DAVID J. WIDI, JR., Plaintiff,
v.
PAUL MCNEIL, et al., Defendants.

          ORDER ON RENEWED MOTION FOR SUMMARY JUDGMENT ON COUNT XVIII

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         Concluding that almost all of the documents the Plaintiff seeks in this Freedom of Information Act Count have either been properly disclosed to the Plaintiff or are exempt from disclosure, the Court grants most of the Executive Office of the United States Attorneys' renewed motion for summary judgment. However, as the Plaintiff raises a factual question on one document that requires further explanation from the Executive Office of the United States Attorneys, the Court defers ruling on that document until the matter is further clarified.

         I. PROCEDURAL AND FACTUAL HISTORY

         This Freedom of Information Act (FOIA) and Privacy Act (PA) claim has a complicated procedural history, which the Court described in its August 16, 2016 Summary Judgment Order on Count XVIII (ECF No. 360) (Order). For purposes of this motion, it suffices to say that on August 16, 2016, the Court issued an order on the Defendants' motion for summary judgment based on their submission of a Vaughn[1] index. In its seventy-three page order, the Court granted summary judgment for all but eight listed documents, and it ordered the Executive Office of the United States Attorneys (EOUSA) either to file a supplemental Vaughn index or to release the requested documents within thirty days of August 16, 2016, the date of the order. Order at 72-73.

         On September 15, 2016, the EOUSA filed a renewed motion for summary judgment and a statement of fact. EOUSA's Renewed Mot. for Summ. J. on Count XVIII (ECF No. 366) (EOUSA Mot.); Supp. Statement of Undisputed Material Facts (ECF No. 367) (DSSMF).[2] On October 11, 2016, David J. Widi, Jr. filed a motion for reconsideration of the summary judgment order and an objection to the EOUSA's renewed motion for summary judgment. Mot. for Recons. of Summ. J. Order and Obj. to EOUSA's Renewed Mot. for Summ. J. on Count XVIII (ECF No. 370, 371) (Pl.'s Mot. for Recons; Pl.'s Opp'n.). On October 25, 2016, EOUSA filed a reply to Mr. Widi's opposition to its renewed motion for summary judgment. EOUSA's Reply Br. in Supp. of its Renewed Mot. for Summ. J. on Count XVIII (ECF No. 375) (EOUSA Reply).

         II. Factual Background

         The Court extensively described the factual background of this FOIA litigation in its August 16, 2016 Order. See Order at 4-26. In its Order, the Court granted in part and denied in part the Defendants' motion for summary judgment, granting summary judgment for all matters except eight matters. Id. at 72-73. For those eight documents, the Court ordered the EOUSA either to file a supplemental Vaughn index or to release the documents within thirty days of the date of the Order. Id.

         Specifically, in the August 16, 2016 Order, the Court addressed the following documents that the EOUSA withheld:

1) EOUSA Index ¶ 24: Memorandum from Health Care Fraud Investigator & Paralegal Specialist (6/25/10) (1 pg). The Court concluded that the EOUSA failed to pinpoint the specific agency decision to which the document related and further failed to assess segregability after invoking Exemption 7(C). Order at 56, 63.
2) EOUSA Index ¶ 29: Psychiatric Consultation “Progress Note” (12/23/09) (3 pgs). The Court concluded that the EOUSA failed to assess segregability after invoking Exemption 7(C). Order at 63. In addition, the Court expressed skepticism about the EOUSA's claim that the psychiatric records were confidential under Exemption 7D. Id. at 65-66.
3) EOUSA Index ¶ 30: “Proffer Agreement” (2 pgs). The Court concluded that the EOUSA failed to assess segregability after invoking Exemption 7(C). Id. at 63.
4) EOUSA Index ¶ 31: AUSA Legal Research (12/22/08) (5 pgs): The Court concluded that the EOUSA failed to explain why the work product privilege applies to all portions of the document. Id. at 57- 58.
5) EOUSA Index ¶ 33: Letters (2) (4/20/10): The Court concluded that the EOUSA failed to assess segregability after invoking Exemption 7(C). Id. at 63.
6) EOUSA Index ¶ 34: AUSA Trial Preparation: The Court concluded that the EOUSA failed to assess segregability after invoking Exemption 7(C). Id. at 63.
7) EOUSA Index ¶ 35: AUSA Handwritten Notes (1/19/11): the Court concluded that the EOUSA failed to assess segregability after invoking Exemption 7(C). Id. at 63.
8) Grand jury exhibits portion of EOUSA Index ¶ 36: Grand Jury Records (140 pgs): The Court concluded that the EOUSA failed to assess segregability as to eighty-five pages of the grand jury exhibits after invoking Exemption 7(C). Id. at 63, n.20. The Court determined that fifty pages of grand jury transcripts and five pages of grand jury subpoenas were otherwise exempt from disclosure. Id.

         III. DISCUSSION

         A. EOUSA Index Paragraph 24: Health Care Fraud Memorandum

         Initially, the EOUSA fully withheld a health care fraud memorandum dated June 25, 2010, under the deliberative process exemption and under the work product privilege. Statement of Undisputed Material Facts, Attach. 3, Third Decl. of John F. Boseker at 22 (ECF No. 305) (DSMF). In its August 16, 2016 Order, the Court concluded that the EOUSA failed to identify the specific agency decision to which the document related and failed to assess segregability after invoking Exemption 7(C). Order at 56, 63.

         In support of its renewed motion, the EOUSA supplied the sworn declaration of AUSA Darcie McElwee. DSSMF, Attach. 1, Decl. of Darcie N. McElwee (McElwee Decl.). In AUSA McElwee's declaration, she stated that the health fraud memorandum was prepared by an investigator in the United States Attorney's Office “for the purpose of determining whether Mr. Widi, as a defendant in a federal criminal case, had received federal benefits to which he was potentially not entitled, thereby warranting additional investigatory steps and/or enforcement action.” Id. ¶ 7. The United States Attorney's Office determined that “there was no basis for taking any further action.” Id. The McElwee sworn declaration therefore confirmed the specific agency decision to which the document related.

         In addition, the EOUSA submitted a fourth sworn declaration of John F. Boseker. DSSMF, Attach. 1, Decl. of John F. Boseker (Boseker Decl.). Mr. Boseker is an Attorney Advisor with the EOUSA and is specifically assigned to the component of the EOUSA designated to administer FOIA. Defs.' Statement of Undisputed Material Facts, Attach. 2, Decl. of John F. Boseker ¶ 1 (ECF No. 45). In his fourth sworn declaration, Mr. Boseker stated that “[b]ased on the nature of the material contained in this document, the entire document is exempt.” Boseker Decl. ¶ 7.

         In his opposition, Mr. Widi notes that this document was unrelated to the charges actually brought against him and therefore, he asserts that the “document was not prepared in anticipation of litigation of that criminal case.” Pl.'s Opp'n at 28. He asserts that the Supreme Court already determined that the deliberative process and attorney work product privileges do not apply to decisions not to file a complaint for purposes of Exemption 5. Id. (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150-59 (1975)). Mr. Widi also questions whether the investigator was a member of the United States Attorney's Office, observing that the earlier Vaughn index indicated the investigator was loaned to the United States Attorney's Office, and if so, in Mr. Widi's view, the memorandum would not have been an “intra-agency ...


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