UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

LONNIE J. PARKER, )

)

Plaintiff, )

)

v. ) Civil Action No. 10-2068 (ABJ)

)

U.S. DEPARTMENT OF JUSTICE )

Executive Office for U.S. Attorneys, )

)

Defendant. )

)

MEMORANDUM OPINION

On December 3, 2010, plaintiff Dr. Lonnie J. Parker brought an action against defendant 

U.S. Department of Justice (“DOJ”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. 

§ 552 et. seq. (2012). Compl. ¶ 1 [Dkt. # 1]. He challenged the agency’s response to his FOIA 

request for records relating to Lesa Gail Bridges Jackson and her unauthorized practice of law 

while working for DOJ as an Assistant U.S. Attorney (“AUSA”). Id. Plaintiff requested six 

types of documents that the agency and the Court condensed into three categories: (1) requests 

for records pertaining to personnel matters and law license records; (2) request for records 

pertaining to any disciplinary matters that may have involved Ms. Jackson; and (3) requests for 

records regarding any remedial measures or additional policies implemented by the U.S. 

Attorney’s office to prevent future unauthorized practice of law by AUSAs. Mem. Op. at 2, 16

[Dkt. # 18]; see also Def.’s Statement of Material Facts in Support of Def.’s Mot. for Summ. J. 

(“Def.’s SMF”) ¶ 3 [Dkt. # 7-1].

In April and May 2011, the parties filed cross-motions for summary judgment. See Pl.’s 

Mot. for Summ. J. [Dkt. # 12]; Def.’s Mot. for Summ. J. [Dkt. # 7]. In a March 29, 2012 
2

memorandum opinion, the Court denied both motions, Mem. Op. at 9, 15–16, and set out what 

DOJ needed to do to fulfill its duties under FOIA: 

 Category 1 (personnel matters and law license records): The Court found that 

DOJ’s search for records responsive to the first category of documents requested 

was not adequate. Id. at 8. DOJ spent no more than one hour on plaintiff’s 

request and then informed plaintiff that Jackson’s personnel records had been 

transferred to the National Personnel Records Center (”NPRC”), which is part of 

the National Archives and Records Administration (“NARA”). Id. at 6. But 

when plaintiff requested the documents from NARA, NARA produced three 

documents to plaintiff and told him that any other responsive documents had not 

been “accessioned” to the NARA and continued to reside with DOJ’s Records 

Management Office. Id. at 7. The Court explained that, based on the record, “it 

[was] completely unclear where the responsive documents are located and which 

agency has responsibility for searching and providing access to the documents.” 

Id. at 6. The Court then remanded the case back to the agency to determine the 

location of the responsive records and which agency had responsibility for 

searching for the records and to perform an adequate search. Id. at 9.

 Category 2 (disciplinary matters): DOJ did not search for responsive records for 

category two. Id. at 10. Rather, it informed plaintiff that it “would neither 

confirm nor deny that any records existed concerning living third parties,” 

explaining that such records, assuming any existed, would be exempt under FOIA 

pursuant to Exemptions (b)(6) and (b)(7)(C).1 Id. at 3. The Court held that DOJ 

could not rely on Exemption 7(C) because it failed to demonstrate that the records 

were compiled for law enforcement purposes.2 Id. at 11–13. With respect to 

Exemption 6, the Court found that there is “both a real private interest and a valid 

public interest” in this case and that DOJ failed to balance those interests to 

determine whether any responsive documents fell within Exemption 6.3 Id. at 13–

16. The Court then remanded the case to the agency to engage in the balancing 

required under Exemption 6. Id. at 16.

 Category 3 (remedial measures): DOJ failed to respond to plaintiff’s final FOIA 

request, maintaining that it was “too vague to constitute a FOIA request.” Mem. 

 

1 DOJ also asserted that releasing the documents, if they existed, would violate the Privacy 

Act, 5 U.S.C. § 552a (2012). Mem. Op. at 10 n.2. But the Court explained that records required 

to be disclosed under FOIA are exempt from the Privacy Act. Id., citing 5 U.S.C. § 552a(b)(2).

2 FOIA Exemption 7(C) exempts documents compiled for law enforcement that “could 

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

§ 552(b)(7)(C).

3 FOIA Exemption 6 allows withholding of “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).
3

Op. at 16, quoting Boseker Decl. ¶ 6 n.1 [Dkt. # 7-4]. The Court rejected DOJ’s 

assertion and found that the request was clear enough to constitute a valid FOIA 

request. Id. The Court then directed DOJ to locate any responsive documents and 

to either disclose them or claim an exemption. Id.

The parties have renewed their cross-motions for summary judgment. Def.’s Renewed 

Mot. for Summ. J. (“Def.’s Mot.”) [Dkt. # 26]; Pl.’s Renewed Mot. for Summ. J. (“Pl.’s Mot.”) 

[Dkt. # 27]. DOJ argues that it is entitled to judgment as a matter of law because it has released 

all non-exempt information after an adequate search. Def.’s Mot. at 1. Plaintiff, however, 

argues that DOJ has not met its burden, and he asks the Court to “allow him to undertake limited 

discovery in this action, in order to determine what type of search procedures are appropriate and 

necessary in order to locate responsive records for his FOIA request.” Pl.’s Reply in Supp. of 

Pl.’s Renewed Mot. for Summ. J. (“Pl.’s Reply”) at 9 [Dkt. # 33].

STANDARD OF REVIEW

The district court reviews the agency’s action de novo, and “the burden is on the agency 

to sustain its action.” 5 U.S.C. § 552(a)(4)(B); accord Military Audit Project v. Casey, 656 F.2d 

724, 738 (D.C. Cir. 1981). “FOIA cases are typically and appropriately decided on motions for 

summary judgment.” Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009).

In any motion for summary judgment, the Court “must view the evidence in the light

most favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew

making credibility determinations or weighing the evidence.” Montgomery v. Chao, 546 F.3d

703, 706 (D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 

(1986). However, where a plaintiff has not provided evidence that an agency acted in bad faith, 

“a court may award summary judgment solely on the basis of information provided by the

agency in declarations.” Moore, 601 F. Supp. 2d at 12.
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ANALYSIS

To prevail in a FOIA action, an agency must first demonstrate 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.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 

(D.C. Cir. 1990). Second, an agency must show that “materials that are withheld . . . fall within 

a FOIA statutory exemption.” Leadership Conference on Rights v. Gonzales, 404 F. Supp. 2d 

246, 252 (D.D.C. 2005).

I. Category One: Personnel and Law License Records

A. DOJ conducted an adequate search for records responsive to category one.

To demonstrate it has performed an adequate search for all relevant documents 

responsive to a FOIA request, an agency must submit a reasonably detailed affidavit regarding 

the search. Oglesby, 920 F.2d at 68. The D.C. Circuit has held that “reasonably detailed” 

affidavits or declarations must “set[] forth the search terms and the type of search performed, and 

aver[] that all files likely to contain responsive materials (if such records exist) were searched.” 

Id.; see also White v. DOJ, 840 F. Supp. 2d 83, 89 (D.D.C. 2012) (“Defendant’s affidavit 

explains what system was searched, the terms used, why it was likely to contain responsive 

documents, and that no other search method would reveal responsive documents. Although the 

affidavit could in theory be more detailed, that fact alone does not warrant denying summary 

judgment in favor of Defendant.”).

In the March 2012 memorandum opinion, the Court stated that, with respect to category 

one:

[I]t would behoove DOJ to communicate with NARA to ascertain: (1) 

where the records are located; (2) which agency bears responsibility to 

search the records in that location; and (3) the status of the accession of 

the records concerning Ms. Jackson to NARA’s permanent collection. If 
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the records have not been transferred to NARA, then DOJ must provide 

the Court with sufficient grounds to conclude that its search has been 

adequate. 

Mem. Op. at 9. Now, DOJ has fulfilled these obligations. 

DOJ has submitted a declaration that sets forth the search terms and the type of search 

conducted. See Vanek Decl. ¶¶ 4–5 [Dkt. # 26-4]. It explained that all responsive records for 

category one are likely to be in Jackson’s Official Personnel Folder (“OPF”) because the OPF 

contains all performance related records, including information regarding an employee’s status 

and service, personnel actions, and law license records. See Mem. in Supp. of Def.’s Renewed 

Mot. for Summ. J. (“Def.’s Mem.”) at 4 [Dkt. # 26-2]; Def.’s Reply to Pl.’s Opp. to Def.’s 

Renewed Mot. for Summ. J. and Opp. to Pl.’s Renewed Mot. for Summ. J. (“Def.’s Reply”) at 2

[Dkt. # 32], citing 5 C.F.R. § 293.304 (2013). DOJ further stated that it contacted the NPRC for 

Jackson’s OPF because an employee’s OPF is transferred to the NPRC after employment ends. 

Def.’s Mem. at 4; Def.’s Reply at 2, citing 5 C.F.R. § 293.307(a) (stating that a federal 

employee’s OPF must be transferred to the NPRC no more than 120 days after separation from 

government service); see also Vanek Decl. ¶ 4. Finally, DOJ explained that the NPRC searched 

for and located Jackson’s OPF using her name and social security number. Vanek Decl. ¶ 5. 

Plaintiff contends that the search was inadequate because it failed to uncover “documents 

demonstrating Ms. Jackson’s false representations of her attorney licencing [sic] status to the 

EOUSA for the years 1989, 1997, 1998, and 1999.” Pl.’s Reply at 6. Plaintiff bases this 

allegation on court documents from Jackson’s bar disciplinary action that state that, during her 

employment as an AUSA, Jackson “filed certification documents with the United States 

Attorney’s Office in 1989, 1997, 1998, and 1999, falsely stating that she was a member of good 

standing of a state bar, when she was not.” Id. at 6–7, citing KBA’s Response to Verified Mot. 
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for Consensual Discipline, Ex. B to 2d Stotter Decl. at 2, Bridges v. Kentucky Bar Association, 

Case No. 11-SC-214 (Ky. Apr. 14, 2011) [Dkt. # 27-3]. But the Vaughn index indicates that the 

OPF contained Jackson’s 1989 certification of her licensing status, and DOJ released that 

document to plaintiff after redacting Jackson’s signature. See Vaughn Index at 4 [Dkt. # 23-1]; 

see also Vanek Decl. ¶¶ 6–7. And the fact that Jackson’s OPF did not include her license

certifications from other years does not make DOJ’s search inadequate. See Wilbur v. CIA, 355 

F.3d 675, 678 (D.C. Cir. 2004) (stating that it is well-established that an “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”); SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991) (“When a plaintiff 

questions the adequacy of the search an agency made in order to satisfy its FOIA request, the 

factual question it raises is whether the search was reasonably calculated to discover the 

requested documents, not whether it actually uncovered every document extant.”). 

Plaintiff also challenges the adequacy of the search on the grounds that the Vanek 

declaration does not explain why the OPF “would be the only location likely to have any 

responsive records as to each of the six subjects sought in Plaintiff’s FOIA request.” Pl.’s Mem. 

in Supp. of Pl.’s Renewed Mot. for Summ. J. and in Opp. to Def.’s Mot. for Summ. J. (“Pl.’s 

Mem.”) at 7 [Dkt. # 27-1]. But at this stage, the Court is only addressing whether defendant’s 

search for documents responsive to category one is adequate, and plaintiff’s arguments as to 

whether the OPF contains information responsive to categories two or three is not relevant to this 

analysis. Therefore, with respect to category one, the Court concludes that DOJ has met its 

burden of demonstrating it conducted a search that was reasonably calculated to uncover all 
7

responsive documents because it has explained that Jackson’s OPF was likely to contain the 

relevant documents, and it searched for and actually located the folder.

B. DOJ has not fulfilled its duty to reasonably segregate and produce non-exempt records 

under Exemption 6.

FOIA Exemption 6 bars disclosure of “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). A determination of proper withholding under Exemption 6 requires 

“weigh[ing] the ‘privacy interest in non-disclosure against the public interest in the release of 

records in order to determine whether, on balance, the disclosure would work a clearly 

unwarranted invasion of personal privacy.” Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 

1999), quoting Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 f.2d 873, 874 (D.C. Cir. 1989). 

Moreover, the agency has a duty to engage in this balancing test before deciding whether to 

disclose or withhold each record. Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 598 F. 

Supp. 2d 93, 96 (D.D.C. 2009) (“[A]n agency must, for each record, conduct a particularized 

assessment of the public and private interest at stake.”).

Plaintiff challenges defendant’s withholding of four documents – documents 47, 48, 50, 

and 51 – under Exemption 6. Pl.’s Mem. at 10; see also Vaughn Index 46–47, 49–50.4 

Documents 47, 48, and 50 are each one-page forms reflecting two salary adjustments and AUSA 

Jackson’s resignation, and Document 51 is a similar form reflecting a request for a change in 

employment status. Vaughn Index at 46–47, 49–50. AUSA Jackson’s letter of resignation is 

attached to Document 51. Id. at 50.

 

4 Since plaintiff has not challenged defendant’s withholdings of the remaining documents 

in the OPF, the Court will treat the validity of those withholdings as conceded. See Fischer v. 

DOJ, 723 F. Supp. 2d 104, 110 (D.D.C. 2010) (holding that the court may properly treat as 

conceded any exemptions and categories that plaintiff does not address in its opposition).
8

The first step in the balancing test under Exemption 6 is to determine whether there is an 

individual privacy interest in the material withheld. Horner, 879 F.2d at 874. Personal 

identifying information – such as a person’s signature, address, phone number, date of birth, 

criminal history, medical history, and social security number – are protected under Exemption 6. 

See, e.g., U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 600 (1982); Horner, 879 F.2d at 

875; Taitz v. Obama, 754 F. Supp. 2d 57, 60 (D.D.C. 2010); Brannum v. Fitzgerald, 377 F. 

Supp. 2d 75, 84 (D.D.C. 2005). Exemption 6 also protects information related to a person’s 

employment status and employment history. Horner, 879 F.2d at 875; Nat’l Right to Work Legal 

Def. & Educ. Found., Inc. v. U.S. Dep't of Labor, 828 F. Supp. 2d 183, 191 (D.D.C. 2011). 

However, Office of Personnel Management Regulation 5 C.F.R. § 293.311(a)(1)–(2), (a)(4)

provides for the release to the public of a person’s name, present and past position titles, and 

present and past annual salary rates.5 

The second step in an Exemption 6 analysis is to weigh the public interest in disclosure 

against the legitimate privacy interest that the court has found. Horner, 879 F.2d at 874. The 

Supreme Court has held that “the only relevant public interest in the FOIA balancing analysis

[is] the extent to which disclosure of the information sought would ‘she[d] light on an agency’s 

performance of its statutory duties’ or otherwise let citizens know ‘what their government is up 

 

5 5 C.F.R. § 293.311 provides:

(a) The following information from both the OPF and employee 

performance file system folders, their automated equivalent records, and 

from other personnel record files that constitute an agency record within 

the meaning of the FOIA and which are under the control of the Office, 

about most present and former Federal employees, is available to the 

public: (1) Name; (2) Present and past position titles and occupational 

series; . . . (4) Present and past annual salary rates (including performance 

awards or bonuses, incentive awards, merit pay amount, Meritorious or 

Distinguished Executive Ranks, and allowances and differentials) . . . .”
9

to.’” U.S. Dep’t of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 497 (1994), quoting 

DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 773 (1989); see also Schwaner v. 

Dep’t of Air Force, 898 F.2d 793, 800 (D.C. Cir. 1990) (“[T]he question is whether the 

information sought would improve the public’s understanding of the way in which government 

operates.”). 

The Court has already determined that there is a valid public interest in knowing how 

DOJ handles the investigation of unlicensed attorneys. Mem. Op. at 15.

6

Plaintiff argues that 

there is a public interest in the release of the contested documents because they demonstrate that 

Jackson received a pay increase while DOJ was investigating her unauthorized practice of law. 

Pl.’s Mem. at 11. 

The Court has reviewed the disputed documents in camera. Documents 47 and 48 reflect 

changes in Jackson’s salary. See Vaughn Index at 46–47. These documents relate to plaintiff’s 

articulated public interest because they demonstrate how DOJ handled Jackson’s salary 

adjustments immediately before she resigned. This public interest outweighs any privacy 

interest because information about “present and past annual salary rates” is already publicly 

available under 5 C.F.R. § 293.311(a)(4). See Gonzales, 404 F. Supp. 2d at 257 (stating that 

there is no privacy interest in information that is publicly available from the Office of Personnel 

Management under 5 C.F.R. § 293.311).

Documents 50 and 51 memorialize Jackson’s resignation, and in particular, document 51

“reflects action by the agency to effectuate Ms. Jackson’s separation from government service.” 

 

6 See also Mem. Op. at 2, quoting Def.’s SMF ¶ 3 (explaining that plaintiff has asserted 

that the disclosure of the records requested “would serve the public interest by promoting 

government transparency, disclosing whether ‘there are safeguards and verification procedures 

used by the U.S. Attorney’s Office to prevent against circumstances’ involving unlicensed 

Assistant U.S. Attorneys, and determining whether DOJ had taken ‘corrective actions or policies 

or remedial measures’”).
10

Def.’s Reply at 4. These documents also relate to plaintiff’s stated public interest because they

illuminate how DOJ effectuated the separation of an unlicensed attorney. Although Jackson has 

some privacy interest in the change in her employment status, the fact that she resigned is public 

knowledge, and plaintiff’s interest in these documents is focused on how DOJ processed her 

resignation. The public interest in DOJ’s processes outweighs the AUSA’s minimal privacy 

interest in the already disclosed fact that she resigned. And since the attached resignation letter 

contains no arguably private information beyond the mere fact of the resignation, the balance 

favors disclosure of that as well. 

Defendant contends that it withheld each document in its entirety because plaintiff’s 

articulated public interest would not be served by the release of the biographical information 

contained in the forms and redacting that biographical information “would result in the release of 

a blank form.” Id. at 4. But the contested documents contain more than biographical 

information. They contain information regarding salary adjustments and the agency action to 

effectuate Jackson’s resignation, which the Court has determined must be disclosed. If a record 

contains information that is exempt from disclosure, any reasonably segregable information in 

the record must be released after deleting the exempt portions, 5 U.S.C. § 552(b), unless the nonexempt portions are “inextricably intertwined with exempt portions,” Wilderness Soc’y v. U.S. 

Dep't of Interior, 344 F. Supp. 2d 1, 18 (D.D.C. 2004), quoting Mead Data Cent., Inc. v. U.S. 

Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977) (internal quotation marks omitted). 

Here, the non-exempt portions are not “inextricably intertwined with exempt portions” because 

they can easily be redacted. Therefore, DOJ is ordered to produce the contested documents after 

redacting all personal exempt information, such as signatures, date of birth, social security 

number, addresses, health and life insurance information, and third-party information.
11

II. Categories Two and Three

In the March 2012 opinion, the Court directed DOJ to search for documents responsive to 

categories two and three and to disclose any non-exempt material. Mem. Op. at 15–16. But in 

its renewed motion for summary judgment and its declaration, DOJ did not discuss its search for 

documents responsive to categories two or three at all. In its reply, DOJ briefly mentioned that 

disciplinary records would also be kept in the OPF and that it conducted a search for records 

relating to remedial measures that DOJ may have adopted. See Def.’s Reply at 2–3. But these 

cursory references in a pleading are insufficient to meet defendant’s burden to demonstrate that 

DOJ has fulfilled its obligations under FOIA. Therefore, the Court will remand the case back to 

the agency to conduct an adequate search and produce all segregable non-exempt information or 

to submit a supplemental declaration adequately demonstrating that it has complied with its

duties to respond to plaintiff’s request for documents that fall within categories two and three.
12

CONCLUSION

For the reasons stated above, the Court will deny DOJ’s motion for summary judgment 

without prejudice, deny plaintiff’s motion as moot, and remand the matter to DOJ for further 

action consistent with this opinion. In particular, with respect to category one, DOJ is ordered to

produce documents 47, 48, 50, and 51 in the Vaughn Index after redacting all personal exempt

information, including signatures, date of birth, social security number, addresses, health and life 

insurance information, and third-party information. With respect to the second two categories, 

DOJ is ordered conduct an adequate search and produce all segregable non-exempt information 

to plaintiff or to submit a supplemental declaration adequately demonstrating that it has complied 

with its duties to respond to plaintiff’s request for documents that fall within categories two and 

three. A separate order will issue.

AMY BERMAN JACKSON

United States District Judge

DATE: September 30, 2013