UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RYAN BAGWELL , Plaintiff,

v. U.S. DEPARTMENT OF JUSTICE , Defendant. Case No. 15-cv-0531 (CRC)

MEMORANDUM OPINION Ryan Bagwell, an alumnus of Penns ylvania State University, file d a request under the Freedom of Information Act (“FOI A”) with the Executive Office f or United States Attorneys (“EOUSA”) seeking records relat ed to investigations into allega tions of child sexual abuse on the University’s campus. The partie s have now filed cross-motions for summary judgment concerning three aspects of EOUSA ’s response: (1) its search of email accounts in the U.S. Attorney’s Office for the Middle District of Pennsylvania, whic h oversaw a criminal investigation into the allegations ; (2) its referral of records to other agencies f or review; and (3) its withholding of records unde r FOIA Exemptions 5 and 7(A). T he Court concludes—for the second time in this case—that the Department of Justice has fai led to carry its burden of detailing an adequate search. It also finds that the Department has impr operly withheld a set of records that it referred to the Departm ent of Education and has inadequ ately justified its withholding of a set of Pennsylvania state grand j ury materials under Exemption 7(A). However, the Court will sustain all but one of the Dep artment’s withholdings under Exem ption 5. The Court will, accordingly, grant and deny both motions in part.2 I. Background As this case has been here before, the Court will only briefly recount the relevant factual background. Both the U.S. Attorney ’s Office for the Middle Dis trict of Pennsylvania (the “U.S. Attorney’s Office”) and the Penns ylvania Attorney General’s Off ice oversaw criminal investigations into allegations of child sexual abuse by former Penn State assistant football coach Jerry Sandusky. In addition, forme r FBI Director Louis Freeh a nd his law firm were retained by Penn State’s Board of Trustees to c onduct an internal investiga tion into the Sandusky matter. Seeking material related to thos e investigati ons, in April 2014 , Plaintiff Ryan Bagwell filed a FOIA request with EOUSA for “a ny and all records of investigati ons between November 1, 2011 and [April 30, 2014] that pertain t o allegations of child sexua l abuse that occurred on the campus of The Pennsylvania State Univ ersity.” Compl. ¶ 5. When EOUSA failed to timely respond, Bagwell filed suit against EOUS A’s parent agency, the Departmen t of Justice. After the suit was filed, EOUS A produced 517 pages of records t o Bagwell and withheld another 104 pages. The parties t hen filed cross-motions for su mmary judgment, with Bagwell challenging the adequacy of the D epartment’s search and its wit hholding of documents. The Court concluded that the Depa rtment had not provided enough inf ormation to allow for resolution of the motions at that juncture. Bagwell v. U.S. De p’t of Justice, 2015 WL 9272836, at *1 (D.D.C. Dec. 18, 2015). As to Bagwell’s challenge to the adequacy of the search, the Co urt identified two concerns it had regarding the s earch performed. First, it was unclear whether or how the Department had searched the U.S . Attorney’s Office email system for responsive emails. Id. at *2. Second, even though former Director Freeh had made public remarks indicating that his firm had communicated with the U.S. A ttorney’s Office regarding the investigation, the Department’s3 search had not uncovered any suc h communications or related doc uments. Id. Because the Department’s supporting declarat ions failed to address these co ncerns, the Court was left “in substantial doubt as to the s ufficiency of the search.” Id. S imilarly, the Court held that the Department’s Vaughn index and declarations were not a dequately detailed to justify the withholdings it had made. Id. a t *4–5. The Court therefore de ferred resolution of the crossmotions and directed the Department to “conduct any necessary a dditional searches, and file a supplemental memorandum in support of its motion for summary ju dgment, including additional affidavits and a revised Vaughn index.” Id. at *5. Following that Order, the Department performed a second search, including one of the U.S. Attorney’s Office email sy stem. To conduct that search, t he Department identified six staff positions that were most likely to have potentially responsive emails in their email accounts: the U.S. Attorney, the First Assistan t U.S. Attorney, the Criminal Chief, the Deputy Criminal Chief, Assistant U.S. Attorney One, a nd Assistant U.S. Attorney Two. Second Simpson Decl. ¶ 11. It then searched these accounts for emails (and attachments) durin g the relevant time period containing four search terms: “Pe nnsylvania State University,” “Child sexual abuse and Pennsylvania State University,” “Sandusky,” and “Freeh.” Id. ¶12. Upon completion of its search, the Department produced a n additional set of documents to Bagwell, while also making further withholdings. After the second round of productio ns, the Department renewed its motion for summary judgment, filing supplemental declarations and Vaughn indices. See Def.’s Mem. P. & A. Supp. Renewed Mot. Summ. J. (“Def.’s MSJ”). 1 Bagwell filed a cross-motion for summary judgment,

1 In the process of prep aring this revised Vaughn index, the Department discovered approximately 260,800 pages of electr onic records that it had n eglected to produce. See4 again challenging the adequacy of t he search and the Department ’s withholdings. See Pl.’s Mem. P. & A. Opp’n Def.’s Mot. Summ. J. & Supp. Pl.’s Cross-Mot . Summ. J. (“Pl.’s MSJ”). The Court held a hearing on the cross-motions on February 28, 2 018. Based on the arguments presented in the briefing and at the hearing, the Court will gr ant in part and deny in part both motions, as detailed below.

II. Legal Standard Summary judgment is appropriate ly granted if the moving party s hows that there are no genuine issues of material fact a nd that they ar e entitled to j udgment as a matter of law. Fed. R. Civ. P. 56(c). FOIA cases “typical ly and appropriately are dec ided on motions for summary judgment.” Def. of Wildlife v. U.S. Border Patrol, 623 F. Supp . 2d 83, 87 (D.D.C. 2009). The Court can award summary judgment to an agency if it “proves tha t it has fully discharged its obligations under FOIA, after t he underlying facts and inferenc es to be drawn from them are construed in the light most fa vorable to the FOIA requester.” Tushnet v. ICE, 246 F. Supp. 3d 422, 431 (D.D.C. 2017). The first such obligation an agency must fulfill is to conduct an adequate search for the requested records. See, e.g., Valencia-Lucena v. U.S. Coast Gu ard, 180 F.3d 321, 326 (D.C. Cir. 1999). For a search to be adequate , an agency must show “beyon d material doubt that its search was reasonably calculated to uncove r all relevant documents.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (quotat ion omitted). In evaluating the adequacy of a search, the Court may rely on sufficiently detail ed affidavits or declarations

Simpson Decl. ¶ 10. The Court decl ined to stay the current rou nd of summary judgment briefing until production of the newly-discovered records was complete, instead bifurcating summary judgment to allow this round of briefing to move forward. See Order (July 19, 2017).5 submitted by the agency that set forth the search terms and the type of search performed. See Valencia-Lucena, 180 F.3d at 326. Ag ency FOIA declarations car ry “a presumption of good faith, which cannot be rebutted by pu rely speculative claims ab out the existence and discoverability of other documen ts.” SafeCard Servs. Inc. v. S EC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quotation marks omitted). In addition, an agency must ade quately justify any withholding s it makes under FOIA’s exemptions from disclosure. Because FOIA “seeks ‘to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language,’” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975) (citatio n omitted), any exemption from disclosure is construed narrowly and the agency bears the burden of establishing that every withholding is justified. S ee, e.g., DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015).

III. Analysis Bagwell levels three main chall enges in his renewed motion for summary judgment. First, he once again challenges the adequacy of the Department’ s searches. Second, he contends that the Department’s referral of a set of records to other age ncies constitutes an unlawful withholding. And third, he chall enges the Department’s withhol ding of documents, primarily pursuant to Exemption 7(A) and Exemption 5. The Court finds that that the Dep artment’s search efforts were inadequate because the search terms used were facia lly under-inclusive and thereby not reasonably calculated to uncover all responsive materials. As t o the referred records, the Cour t finds that the re cords referred to the Department of Education cons titute improperly withheld reco rds. Finally, the Court finds that the Department has faile d to adequately justify the withho lding of certain Pennsylvania state6 grand jury materials under Exem ption 7(A) but that it has adequ ately supported most of its other withholdings.
A. The adequacy of the search Bagwell claims the Department’s search efforts are still inadeq uate, despite its supplemental searches and decl arations. He does not dispute th at the Department searched for responsive emails, as the Court requested, nor does he argue th at more or different email accounts should have been searched. Rather, Bagwell points to three specific indications of an inadequate search. First, Bagwell claims that th e Department produced only two ema ils with employees of former Director Freeh’s law firm , which he argues is a “positiv e [indication] of overlooked materials.” Pl.’s MSJ at 9–10. He relies on Valencia-Lucena v . U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999), for this pr oposition, but that case is in apposite. In Valencia-Lucena, the search was deemed inadequate beca use the government failed to s earch “all places it knew likely to turn up the information reque sted.” Id. at 327 (internal qu otation marks omitted). By contrast, Bagwell does not identify any additional places the Department should have searched, such as other email accounts. Furthermore, based on tallying up the nu mbers provided in the second declaration from D. Brian Simps on, an Assistant U.S. Attorney f or the Middle District of Pennsylvania, the search term “Freeh” turned up over 300 emails across the six accounts searched. See Second Simpson Decl . ¶ 17. Given these results, the Court is satisfied that any responsive email between employ ees of Freeh’s law firm and the U.S. Attorney’s Office relating to the investigation would have b een uncovered by the search te rm “Freeh,” making it adequate in this regard.7 Bagwell next contends the four search terms used to conduct the search were not reasonably selected to capture responsive documents. 2 Pl.’s MSJ at 9. Bagwell argues that the search term “Pennsylvania State University” alone is insufficie nt because it would not pick up documents that contained only “PSU” or “Penn State,” names comm only used to refer to the University. Id. The Court agr ees. As Bagwell notes, in commo n conversation the University is more likely to be referred to as “Penn State” or “PSU,” making it reasonable to conclude that emails concerning the various i nvestigations would use one of t hese two terms rather than the full name of the University. Ind eed, in its own pleadings and Vaughn Index, the Department itself uses the terms “PSU” and “ Penn State,” rather than the U niversity’s full name. At the hearing, counsel for the Depart ment was unable to provide a suf ficient explanation for why the Department used the full name of the University alone as a sear ch term. Because it is likely that emails concerning the investiga tion would use “PSU” or “Penn St ate” rather than the full name of the University, the Departme nt’s search was not reasonably c alculated to fi nd all responsive emails. Cf. Tushnet, 246 F . Supp. 3d at 434–35 (expressing con cern over selection of terms that was “facially lacking, with some [searches] not even including terms explicitly called out in [the] request.”). Given the facial under -inclusivity of the term “Pennsylvania Se arch University,” the Court finds that the Department has yet to show “beyond materia l doubt that its search was reasonably calculated to uncover all relevant documents.” Anci ent Coin Collectors Guild, 641 F.3d at 514 (quotation marks omitte d). The Court will therefor e require the Department to

2 As the Court understands it, the search term “Pennsylvania Sta te University” would also have found any documents responsive to the search team “Pennsyl vania State University and child sex abuse,” since the shor ter term is fully contained wit hin the longer term. Thus, the Department, in effect, used t hree search terms, not four.8 conduct a further adequate search of the U.S. Attorney’s Office emails. However, before doing so, the Court will order the parties to meet and confer within fourteen days and engage in a good faith effort to arrive at a r easonably limited set of additiona l search terms that rectify the underinclusivity of the “Pennsylvania State University” search term without being too over-inclusive. 3 If the parties cannot reach agreem ent, they shall file a joint submission setting forth their respective terms and their posit ions on all disputed terms with in seven days thereafter. At this juncture, then, the Court will deny without prejudice both moti ons with respect to the adequacy of the search in order to allow a further search of the six ide ntified email accounts. 4
B. The referred records In the course of responding to Bag well’s request, the Departme nt referred a set of records it found in its search to other age ncies, such as the Departmen t of Education and the FBI, to review for responsiveness or wit hholdings. See Joint Status Re port (filed May 1, 2017). Bagwell challenges these referr als as improper withholdings und er FOIA. As the D.C. Circuit has recogni zed, when an agency receives a F OIA request it “cannot simply refuse to act on the ground t hat the documents originate d elsewhere.” McGehee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983). But an agency is permitt ed to refer documents it finds in its search to the originating a gency for processing. See, e.g. , id. Such referrals can constitute an

3 If technically feasible, the De partment might consider using B oolean search terms to limit the number of unresponsive documents returned. For exampl e, the Department could search for (“PSU” OR “Penn State” OR “Pe nnsylvania State University”) AND (child! OR abuse).

4 Bagwell’s third complaint about the adequacy of the search is that the search terms did not include a reference to Sa ndusky’s charity The Second Mile, in connection with which much of the alleged abuse took place. B ecause the Court is requirin g a further search of the U.S. Attorney’s Office emails, it wi ll defer resolution of this poin t to enable the parties to consider the issue in their discussions concer ning additional search terms.9 improper withholding under FOIA i f the “net effect is significa ntly to impair the requester’s ability to obtain the records or significantly to increase the amount of time he must wait to obtain them.” Id. This sort of withholding will be improper “unless the agency can offer a reasonable explanation for its procedure.” Id. The parties confirmed at the he aring that all but one of the a gencies that received referred records has responded to Bagwe ll by either producing the docume nts or asserting exemptions to justify withholdings. Any claim as to these documents is thus moot, since Bagwell has either received his requested records or was in a position to challeng e the basis for their withholding. He offers no reason why any respons e to his request could not c ome from the referral agency rather than the Department of J ustice. In this respect, then, the Court will grant the Department’s motion and deny Bagwell’s. That being said, Bagwell has not r eceived a response from the Department of Education regarding the records referred t o that agency. The Department of Justice contends that those records are similar to records that were the subject of a separ ate FOIA request Bagwell made directly to the Department of Education. See Bagwell v. U.S. D ep’t of Education, 183 F. Supp. 3d 109 (D.D.C. 2016). That may be so, but any similarity in th e two requests does not relieve at least one of the Departments of t he obligation to inform Bagwel l of its intent to withhold the documents pursuant to valid FOIA exemptions or to release them. Because there is no indication in the record that the Departme nt of Education has ever respond ed to Bagwell concerning the referred records, those records have been improperly withheld a nd the Court will grant Bagwell’s motion for summary judgment on thi s point. The Department of J ustice will be required to either produce or explain the withholdi ng of those records referred to the Department of Education.10 C. Challenges to withheld records Finally, Bagwell challenges the D epartment’s withholdings of re cords under Exemption 7(A), which protects certain law -enforcement records, and under Exemption 5, which protects records that fall within a c ivil litigation privilege.
1. Withholdings of Pennsylvania Attorn ey General materials under Exemption 7(A) Bagwell first challenges the w ithholding of a set of documents related to the state grand jury proceedings. The second declar ation from Assistant U.S. A ttorney Simpson notes that the U.S. Attorney’s Office withhel d 243,000 pages of electronic gra nd jury records produced by the Pennsylvania Attorney General’s office pursuant to a court orde r and 1,307 pages of grand jury transcripts (which may or may not be part of the 243,000 pages of records). Second Simpson Decl. ¶¶ 30, 46. In its brief, the Department does not identif y any exemptions aside from 7(A) that it is asserting as to these materials. 5 Exemption 7(A) of FOIA protects from disclosure “records or inf ormation compiled for law enforcement purposes” whose release “could reasonably be ex pected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). To qualify for the exemption, the enforcement proceedings must be currently ongoing or “reasonabl y anticipated.” Sussman v. U.S. Marshals Service, 494 F.3d 1106, 1114 (D.C. Cir. 2007) (ci tation omitted). The D.C. Circuit has recognized that an agency can make the req uisite showing under Exemption 7(A) on a categorical , as opposed to document-by-docu ment, basis. See, e.g., Bevis

5 The Department’s Vaughn index does assert Exempti on 7(D) solely as to the 1,307 pages of transcripts. But because the Department did not argue in support of that exemption in its brief, the Court will rese rve on its applicability until bo th parties have a n opportunity to brief that issue.11 v. Dep’t of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986). To do so, the agency must meet three requirements. First, it must “de fine its categories functional ly.” Id. The “hallmark” of a functional category is that it “allows the court to trace a rat ional link between the nature of the document and the alleged likely i nterference.” Crooker v. Bure au of Alcohol, Tobacco, & Firearms, 789 F.2d 64, 67 (D.C. Cir. 1986). Second, the agency “must conduct a document-bydocument review in order to ass ign documents to the proper cate gory.” Bevis, 801 F.2d at 1389. That is, the agency “must itsel f review each document to determ ine the category in which it properly belongs.” Id. Finally, th e agency “must explain to t he court how the release of each category would interfere with enf orcement proceedings.” Id. at1390. To make this showing, it is not enough that a record relates to an ongoing proceeding. See, e.g., North v. Walsh, 881 F.2d 1088, 1097 (D.C. Cir. 1989). Nor is it sufficient for an agency to merely state in conclusory terms that disclosure would inter fere with a proceeding; rather the agency must specifically articulate how disclosure would do so. Sussman, 494 F.3d at 1114; see also U nited Am. Financial, Inc. v. Potter, 531 F. Supp. 2d 29, 40 (D.D.C. 2008)

. Setting aside the first two requirements for categorical withho lding, the Department has not met its burden under the third requirement here. 6 In his second declaration, Assistant U.S. Attorney Simpson states that these documents were provided by t he Pennsylvania Attorney General’s office pursuant to a s tate court order and that they relate to state grand jury

6 The Court will note that other decisions have dealt with a “gr and jury materials” category of documents before, indica ting that the Department ca n create such a functional category of documents. See, e.g., Sussman, 494 F.3d at 1114 (a ddressing a catego ry defined as “records or information that is relevant to pending grand jury investigations” (citation omitted)). As to the second requirement, the Court will simply remind the Department that Bevis requires that the agency must itself review each document to determ ine its category. See 801 F.2d a t 1389.12 proceedings. Second Simpson Decl. ¶¶ 30–31, 46–47. He notes t hat the criminal proceedings related to the Sandus ky investigation are still ongoing—Sandusk y is seeking a new trial and another defendant has pending post- sentencing motions and an an ticipated appeal forthcoming. Id. ¶¶ 32, 47. Thus, Simpson says, the Pennsylvania Attorney G eneral’s Office has “a continuing interest in maint aining confidentiality.” Id. ¶ 32; see also id. ¶ 47. A letter from the Pennsylvania Attorney General’s office confirms the ongoing nat ure of the Sandusky case and reiterates its “continuing inte rest in maintaining confidential ity” of these records. Second Simpson Decl. Ex. 2. 7 The Simpson declaration certain ly establishes the ongoing natur e of the criminal proceeding. See, e.g., DeMartino v. FBI, 577 F. Supp. 2d 178, 182 (D.D.C. 2008) (holding that a case on appeal is still a pending enforcement proceeding). But it fails to explain how the disclosure of any of these docum ents would interfere with this ongoing proceeding. Prior cases in this circuit have made clear this is insufficient under Exem ption 7(A). For instance, in Sussman the D.C. Circuit held t hat the agency had not met its b urden to withhold a category of grand jury materials under Exem ption 7(A) where its affidavit “ merely” “state[d] that disclosure would reveal the focus of a n investigation.” 494 F.3d at 1114. Rather, the D.C. Circuit required “specific information about the i mpact of the disclosures.” Id . Similarly, a fellow judge in this District found agency affidavits t hat provided a “ conclusory” a ssertion that release of the documents could interfere in any f uture prosecutions without “d escribing how disclosure of the

7 The Department’s brief makes additional assert ions of harms th at might flow from the release of information, such as intimidating witnesses or jeopa rdizing new trial st rategies. Def.’s MSJ at 4. But these harms are unsubstantiated because none of them appear in the Simpson Declaration that the Departmen t cites to in support of these as sertions in its brief.13 documents could reasonably be expect ed to interfere with such aprosecution” insufficient to meet the agency’s burden under Exemption 7(A). United Am. Fina ncial, 531 F. Supp. 2d at 39. As in these cases, the Simpson D eclaration provides only a conc lusory statement that interference would occur w ithout any discussion of how it would occur. After all, the mere fact that these records were part of the grand jury proceeding and a re confidential does not explain how the release of the records w ould interfere with the ongoing proceeding. This is particularly so given the post-conviction stage of the Sandusky proceedings and the fact that some material from the grand jury proceeding has now become public knowledge following the completed trials—any claim of a need to prot ect possible evidence for tri al is hollow if that evidence has already been publicly disclosed and admitted at trial, for inst ance. Without a discussion of the way in which release of this info rmation would jeopardize the s till-pending proceedings, the Department has failed to meet its burden under Exemption 7(A). Accordingly, the Court will require the Department—should it wi sh to continue to maintain its Exemption 7(A) asse rtion—to provide more fulsome d eclarations that adequately support the exemption’s applic ability. The Court will also rem ind the Department to take account of the current status of t he enforcement proceedings wh en making any further justification for that e xemption. Cf. North, 881 F.2d at 1100 (“Disclosure of the information [plaintiff] seeks cannot interfe re with parts of the enforcemen t proceeding already concluded. On remand, then, the district co urt should consider whether dis closure can reasonably be expected to interfere . . . with the remaining portions of the enforcement proceeding.” (emphasis added)). Alternatively, in light of the federalism and comity concerns that would be implicated by ordering the release of record s that a state attorney genera l and court have recognized are14 protected state grand jury materials, as di scussed at the heari ng the Court will allow the Department to assert additional bases for withholding if it wis hes.
2. Withholdings in the Vaughn index under Exemption 5 Bagwell next raises a challenge to documents withheld and liste d in the Department’s Vaughn index. The government withheld a set of documents in full unde r Exemption 5— asserting both the attorney work- product privilege and the deli berative process privilege—as well as other documents in part under Exemption 5 and Exemption s 6 and 7(C). 8 Bagwell disputes the applicability of the attorney work-product privile ge assertion generally and then separately challenges specific documents withheld in full or in part. The Court will first address his general challenge before moving to his specific document-by -document challenges. But first, some legal bac kground. Exemption 5 of FOIA protects from disclosure “interagency or intra-agency memora ndums or letters which would not b e available by law to a party other than an agency in litigat ion with the agency.” 5 U.S.C. § 552(b)(5). This exemption encompasses a variety of privile ges that apply in the civil dis covery context, including, as relevant here, the attorney work- product privilege and the deli berative process privilege. See, e.g., Nat’l Ass’n of Criminal Defe nse Lawyers v. Dep’t of Justi ce Executive Office for U.S. Attorneys (“NACDL”) , 844 F.3d 246, 249 (D.C. Cir. 2016). The attorney work-pr oduct privilege “prote cts written materials lawyers prepare ‘in anticipation of litigation. ’” In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) (citation omitted). This privilege thereby “protect[s] ‘the integrity o f the adversary trial process itself’” by ensuring attorneys have “‘a z one of privacy w ithin which to think, plan, weigh facts and

8 Exemptions 6 and 7(C) protect cer tain types of documents whose disclosure would constitute an unwarranted inva sion of privacy. See 5 U.S.C. § 552(b)(6), (7)(C).15 evidence, candidly evaluate a c lient’s case, and prepare legal theories.’” NACDL, 844 F.3d at 251 (citations omitted). A document falls within the scope of this privilege if “in light of the nature of the document and the f actual situation in the particu lar case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” Sealed Case, 146 F.3d at 371 (citation omitted). Thi s requires that the attorne y “have had a subjective belief that litigation was a real possibility ” and that that belief was “ob jectively reasonable.” Id. The deliberative process privil ege, in contrast, is intended to protect the government decision-making process, primaril y by “assur[ing] that subordin ates within an agency will feel free to provide the decisionmake r with their uninhibited opinio ns and recommendations.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). To fall within the scope of this privilege, a doc ument must meet two requireme nts: (1) it must be “predecisional” and (2) it mu st be “deliberative.” Id. A docu ment is “predecisional” if “it was generated before the adoption of an agency policy” and it is “d eliberative” if it “reflects the giveand-take of the consultative process.” Id.

a. Applicability of the attorn ey work-product privilege Bagwell first argues that the D epartment has not justified the applicability of the attorney work-product privilege because it has not met the requirement t o show that the withheld documents were prepared in ant icipation of li tigation. In part icular, Bagwell c ontends that the Department has failed to “identi fy a ‘specific claim’ in an enf orcement action that caused the document’s creation.” Pl.’s MSJ a t 15. This argument misses t he mark. For one, the D.C. Circuit has rej ected the “specific claim” tes t that Bagwell advances. In NACDL, the D.C. Circuit explaine d that it has “long held that t here is no general, overarching requirement that a governmental document can fall within the wo rk-product privilege only if16 prepared in anticipation of litigating a specific claim.” 844 F.3d at 253; see also Schiller v. NLRB, 964 F.2d 1205, 1208 (D.C. Cir. 1992) (“Exemption 5 extend s to documents prepared in anticipation of foreseeable litig ation, even if no specific cla im is contemplated.”), abrogated on other grounds by, Milner v. Dep’t of Navy, 562 U.S. 562 (2011) (addressing FOIA Exemption 2). While the existence of a s pecific claim can be helpful “as a means of identifying whether documents had been prepared at a time when litigation was suffi ciently in mind,” ultimately “there is no need to apply any sp ecific-claim test to conclude that litigation is sufficiently likely to warrant application of the wor k-product privilege.” NACDL, 844 F.3d at 255. Applying the proper standard, the D epartment has adequately jus tified that the documents were prepared in reasonable an ticipation of li tigation. A decl aration submitted by Princina Stone, an attorney with EOUSA, atte sts that the withheld docume nts were prepared by the U.S. Attorney’s Office while that o ffice “was investigating claims o f child sex abuse[] [on] campus.” Second Supplemental Stone Decl. ¶ 51. In other words, the docu ments were created by attorneys during a law enforcement inves tigation into allegations of spec ific illegal activity (child sex abuse and concealing such abuse) by specific people (Sandusky a nd others at the University). The D.C. Circuit has held that “where an attorney prepares a do cument in the course of an active investigation focusing upon specifi c events and a specific poss ible violation by a specific party, it has litigation sufficiently ‘i n mind’ for that document to q ualify as attorne y work product.” SafeCard Servs., 926 F.2d at 1203. Thus, the documents withhel d here that were created during the investigation meet the requi rement to have been created in reasonable anticipation of litigation.17 b. Challenges to documents withheld in full Bagwell next challenges certain s pecific documents the Departme nt withheld, either in part or in full. As to the first category, the Department with held several documents in full, asserting the deliberative pro cess privilege and the attorney w ork-product privilege. Bagwell contests the withholding of sev en of these documents—numbered 1 , 2, 3, 6, 11, 12 and 17 in Bagwell’s annotated Vaughn index. See Pl.’s MSJ Ex. M. Most of these documents clearly f all within the scope of the at torney work-product privilege. Documents 1, 2, 3, 6, and 12 are described in the Vaughn index as emails among government attorneys assigned to the Sandusky investigation tha t involve discussions of tactics, legal strategies and theories, a nd investigativ e techniques. M s. Stone’s declaration similarly attests that these documents are “email communications between the government attorneys, memoranda circulated among [the U.S. Attorney’s Office] legal t eam, [and] attorney typed and hand written notes” all of whic h “consist[] of the thoughts and impressions of the legal team.” Stone Second Decl. ¶ 53. Such documen ts clearly fall within th e scope of the attorney workproduct privilege. Bagwell’s challenge to these doc uments mostly reiterates his ea rlier argument against the applicability of the work-product privilege altogether: the do cuments were prepared too early in the investigation a nd, as such, litigati on was not reasonably c ontemplated. Pl.’s MSJ at 21–24. This argument is no more persua sive here. Because the attorney s prepared these documents during a law enforcement investig ation into specific allegation s of illegal conduct by specific individuals, with the intenti on of bringing criminal charges if those allegations were substantiated, they wer e prepared in reasonable anticipation of litigation.18 As to the other two documents, the question is a bit closer. O ne of these, however— Document 11 on Bagwell’s annotated Vaughn index—falls within the scope of the deliberative process privilege, meaning the C ourt need not resolve the quest ion of its status under the workproduct privilege. This document is described as a variety of unsigned draft letters by the U.S. Attorney’s Office. The Stone D eclaration clarifies that these email chains included “back and forth pre-decisional communica tions among the AUSAs and law enf orcement personnel.” Second Stone Decl. ¶ 57. This conf irms that the emails are bot h predecisional (as drafts) and deliberative, and therefore wit hholding was proper under the de liberative process privilege. This leaves Document 17, which is described in the Vaughn index as a series of “Grand Jury Subpoenas letters issued to i ndividuals and businesses.” Based upon this rather vague description, the Court is unable to determine whether they are covered by the attorney workproduct privilege. As such, the Court will order the Departmen t to submit two representative samples of these letters for in camera review. 9

c. Documents withheld in part Additionally, Bagwell ch allenges five sets of documents withhel d in part. He specifically challenges redactions to these documents made under the deliber ative process and work-product privileges. See Pl.’s MSJ at 25–29.

9 The Department has also claimed that Exemption 7(C) protects c ertain personal information in these letters, suc h as the names and addresses o f recipients or government attorneys. Exemption 7(C) protec ts documents “compiled for law enforcement purposes” whose release “could reasonably be exp ected to constitute an unwarran ted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C) . Under D.C. Circuit precede nt, the personal information at issue here would appear to fall within Exemption 7(C). See, e. g., Sussman, 494 F.3d at 1115; SafeCard Servs., 926 F.2d at 1206. However, because Exemption 7(C) only provides a basis for a partial withholding, the Court will still require the Departm ent to submit two sample documents for in camera review to determine if any segregability analysis will be need ed or if the entire document can be withheld under Exemption 5 or even E xemption 7(C).19 The Court concludes that the Dep artment has adequately justifie d its withholding under the work-product privilege. The descriptions of these document s in the Vaughn index state that the Department redacted discuss ions concerning the legal strate gies, theories, and opinions from government attorneys in the ongoi ng investigation, making these discussions protected by the work-product privilege. 10 Bagwell’s counterarguments agai n reiterate his contention tha t the documents were not created in r easonable anticipation of litiga tion. The Court has already explained why that aspect of the w ork-product privilege has bee n met. It will therefore sustain the Department’s partial w ithholdings under Exemption 5.

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10 At the hearing, the Court indicat ed that it was unable to matc h two of the sets of emails—the third and fifth items challenged by Bagwell—to their entries in the Vaughn index. The Department has clarified tha t those sets of emails are part of the emails regarding newspaper articles, in the entr y beginning on page 23 of the Vaughn index.20 IV. Conclusion For the foregoing reasons, the Court will grant in part and den y in part both motions for summary judgment. It will deny bo th motions without prejudice as to both the adequacy of the search and the Department’s wi thholding under Exemption 7(A), a nd will require the Department to perform a further adequate search and provide fur ther justification for withholding the Pennsylvania state grand jury materials. The Court will gr ant the Department summary judgment as to the records referre d to agencies other than the Department of Education, but will grant Bagwell summary judgment a s to records referred to the De partment of Education and will require those records be produ ced or an explanation for withhol ding provided. Finally, the Court will grant summary judgment for the Department on its other wit hholdings under Exemption 5 except for the “subpoenas lett ers” (which it will review in camera ). A separate Order shall accompany this Memorandum Opinion.

CHRISTOPHER R. COOPER United States District Judge Date: March 22, 2018