1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALLEN L. WISDOM , Plaintiff,

v. Civil Action No. 15

- 1821 (JEB)
UNITED STATES TRUSTEE PROGRAM , Defendant

.

MEMORANDUM OPINION AND ORDER

In a pr i or Memorandum Opinion, the Court refrained from resolving whether Defendant

had properly withheld in part performance evaluation s for a former trustee

– Jeremy Gugino

–
under Freedom of Information Act E xemption 6; it instead ordered the United States Trustee
Program to produce these records for in camera review. See ECF No. 28. Defendant has since
supplied t hree such records

. See ECF No s . 31

- 33 . Hav ing n ow review ed these documents , the

Court concludes that i t would benefit from further briefing by the parties before deciding

whether the redactions therein are appropriate

. As the Court previously explained, to resolve this particular dispute, it must decide
whether Gugino’s privacy interest in the redacted information is outweighed by a public interest

in its disclosure. Wisdom v. U.S. Trustee Program , 2017 WL 149952, at *17

- 18 (D.D.C. Jan.
13, 2017) ; s ee also Am. Immigration Lawyers Ass’ n v. Exec. Office for Immigration Review , 830 F.3d 667, 673

- 74 (D.C. C ir. 2016)

. A dditional briefing on this question is necessary now for

two reasons. First, USTP provided only a cursory description of these t hree documents in its earlier

round of summary

- judgment briefing

. In particular, Defendant’s Vaughn Index described them2 simpl y as Gugino’s “performance reviews” that it had redacted under Exemption 6 to prevent a clearly unwarranted inva sion of his personal privacy. See ECF No. 14 , Exh. Y (2015

- 2053
Vaughn Index ) ( referencing pp. 10

- 23 (2012 Performance Re view) ) ; ECF No. 24, Exh. K (2016

-
2033 Vaughn Index) ( referencing pp. 15

- 34 (2008 Performance Review) ; pp. 41

- 63 (2010
Performance Review) )

. Proceeding p ro se , Plaintiff Wisdom thus had almo st no idea what

information might b e contained in them , and he certainly had but a scant basis to argue that such

material might advance a public interest

. He nevertheless s peculated that these records could

contain USTP discussions about the potential inadequacy of Gugino’s bond coverage while he
was administering b ankruptcy cases. Wisdom is correct. The redacted records do in fact contain

narratives written by the agency , some of which discuss whether Gugino maintained the
adequate amount of bond coverage for the auctions that he contracted for as a trustee. As

Plaintiff has not yet had an adequate opp ortunity to present a refined argument as to the potential
public interest in such material , the Court believes that he should be given another chance to do

so with the content of the se records now in clearer focus

. Second, there has been some confusion as to the scope of the redaction s in these

document s

. A fter USTP provided them for in camera review , it filed a notice with the Court
explaining that its earlier Vaughn Index contained a “pagination error ” with respect to Gugino’s final performance evaluation

. See ECF No. 33 at 1

. But t his error goes beyond t he mere fact

that the evaluation wa s listed as 14 pages when it is in fact longer . A comparison of the records

turned over to Wisdom , see ECF No. 18 , Exh. B, and the document provided for in camera

review shows that the five pages Defendant omitted from its response to him were exclusively

narrative sections interspersed throughout the document (as opposed to a check

- list evaluation )

. This omission limited Wisdom’s ability to identify a public interest in the redactions3 because he could not have known that the records contained lengthy discussion s about Gugino ’s

conduct toward the public during his service as a trustee . These narratives , in fact, in clude an
ad ditional page discussing Gugino ’s compliance with the third “meetings of creditors” criteria, an additional page on the ninth “TIRs and Operating Chapter 7 Reports” criteria, and three
additional pages talking about the thirteenth “ Conduct of Tr ustee ” criteria. Together, the length

of this final evaluation, especially in comparison to the previous shorter ones, show s that USTP
had in its possession much more extensive information about Gugino’s potential misuse of his authority during the time i n question , and that the agency discussed at length its response to that

information

. Indeed, f rom the Court’s own review of these documents, they also contain

material that discusses additional complaints lodged against the former trustee

– complaints that

were not otherwise included in the records previously turned over to Plaintiff.

The public does have some interest in these evaluations , as Defendant’s own affidavits in
the pre vious round of briefing concede , to the extent that they contain “information that would shed light on the United States Trustee’s execution of its mission to oversee private trustees
under 28 U.S.C. § 586.” ECF No. 14

- 1 (Declaration of Joseph Carilli), ¶ 34; see also Dep’t of

Justice v . Reporters Comm

. for Freedom of the Press , 489 U.S. 749, 773 (1989) (acknowledging
valid public interest in FOIA context whe re information would serve FOIA’ s core purp ose of shedding light on agency’ s performance of its statutory duties)

. Not only do the se records appear

to include such material , but they also contain much more of it th an Wisdom previously could

have surmised

. As alluded to above, t hese omitted pages contain substantial discussion s about
the nature and results of the agency’s res ponse to and investigation of complaints lodged against Gugino , as well as it s c ommunication s to him about the same

. The question , of course, is whether such a public interest outweighs Gugino’ s privacy4 interest in his evaluations

. See Carter v. Dep’ t of Commerce , 830 F.2d 388, 39 0

- 91 1 nn. 8 & 13
(D.C. Cir. 1987). To give Plaintiff a fair shot at meeting his burden , the Court must give him

anot her chance to brief the issue as to these particular records . This issue, then, should also be covered in the par ties’ subsequent round of briefing.

For the reasons set forth above, the Court ORDERS that the parties shall include in their briefing (set by Minute Order of January 30, 2017) a discussion of the private and public
interests implicated by the three per formance evaluations.

SO ORDERED.

/s/ **James E. Boasberg** JAMES E. BOASBERG United States District Judge Date: February 8 , 2017