1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LONNIE J. PARKER, Plaintiff, v. Civil Action No. 15-1070 (JEB) UNITED STATES DEPARTMENT OF JUSTICE, OFFICE OF PROFESSIONAL RESPONSIBILITY,
Defendant.

MEMORANDUM OPINION Much like the story arc of a cl assic horror flick, the cast of disputed documents in this Freedom of Information Act re el has now been whittled down to o ne. Plaintiff Lonnie J. Parker initially requested records rela ting to the Government’s discip line of a former Assistant United States Attorney in the Eastern D istrict of Arkansas, who was caught prosecuting cases without a valid bar license. Defendant Dep artment of Justice’s Office of Professional Responsibility responded by identifying all releva nt records, releasing some, withholding most (in part or in full), and referring still others to separate DOJ components — including the Executive Office for U.S. Attorneys — for processing. The Court’s prior Opinion largely upheld those release decisions, but found that OPR had n ot explained the legal bases for withholdings made following the EOUSA referral. Defendant ha s since clarif ied that area of confusion. Satisfied with that explanation, P arker turns to one final issu e in this latest round of summary-judgment briefing. He poi nts out that a letter from th e EOUSA production is lacking its attachment. Despite OPR’s ret ort that the attachment is bo th non-responsive and exempt from2 disclosure, the Court finds that Defendant must segregate and r elease a few paragraphs. Each side’s Motion will thus be granted in part and denied in part.
I. Background Because the prior Opinion sets forth the background, the Court skims over the bulk of the case’s particulars. See Parker v. DOJ, 214 F. Supp. 3d 79, 82- 83 (D.D.C. 2016). Broadly speaking, this FOIA action pertains to Parker’s request for rec ords “regarding any investigation or consideration of disciplinary actions involving the unauthor ized practice of law by former Assistant U.S. Attorney Lesa Ga il Bridges Jackson.” ECF No. 23 -1 (Revised Third Declaration of Ginae Barnett), Exh. D (FOIA Request) at 1. Although OPR initially neither c onfirmed nor denied that there was information pertaining to Bridges Jackson’s bar-lapse discipline, the agenc y later decided to search for and release records. Parker, 214 F. Supp. 3d at 83. It identified roughly 250 pages of responsive material, releasing some in the ir entirety, withholding (in part or in full) the majority, and referring the remainder to EOUS A and other DOJ components for p rocessing. Id.; see Third Barnett Decl., ¶ 8. The Court resolved several issu es relating to this production i n its earlier Opinion. Relevant here, it held that OP R had properly withheld portions of four challenged documents under FOIA Exemption 7(C) — whic h protects the privacy of indiv iduals mentioned in lawenforcement records — and that no further material could be mea ningfully segregated and released. See Parker, 214 F. Supp. 3d at 85-89. As to 56 page s of documents referred to EOUSA, however, the Court found that OPR had improperly omitted “a description of the specific legal bases for EOUS A’s withholdings.” Id. at 90.3 Defendant has now offered explanat ions for EOUSA’s decisions ina renewed Motion for Summary Judgment. See ECF No. 3 9-2 (Declaration of David Luczy nski), Exh. C (EOUSA Vaughn Index). Parker has responded with his own Cross-Motion.
II. Analysis Before the Court reaches the dénouement of this case — regarding a missing attachment from an already-produced letter — it quickly disposes of two of the parties’ preliminary arguments. First, following the Gov ernment’s new explanations, Parker no longer ch allenges its withholding of the 56 pages of EOUSA materials at issue last ti me. See Def. Reply at 2-3; see also Parker, 214 F. Supp. 3d at 90- 91. Second, Plaintiff initi ally argues that OPR should have searched harder for the aforeme ntioned attachment. See Pl. Mot . at 5-9. It turns out, however, that Defendant did look for the document after Parker prodded t he agency to do so and, in fact, found it. See ECF No. 42-1, (Fift h Declaration of Ginae Barnet t), ¶ 6. Plaintiff thus rightfully concedes that his “prior sear ch objections, pertaining to Defen dant’s failure t o perform this follow-up action, ha[ve] now been addressed.” Pl. Reply at 5 & n.4. This search-adequacy challenge, too, can now be put to rest. The lone surviving dispute, the refore, is whether OPR should pr oduce that attachment — a document that was appended to apreviously disclosed cover le tter from U.S. Attorney Paula Casey found among the EOUSA records. See ECF No. 28-1 (Fourth Declaration of Ginae Barnett), Exh. A (EOUSA Response) at OPR-41 (May 26, 2000, Lett er from Paula J. Casey, U.S. Att’y, E.D. Ark., to H. Marsha ll Jarrett, Counsel, OPR) at 1. The Casey Letter is addressed to the head of OPR and asks for his i nput on a five-day suspension of Bridges Jackson that was recommended “for reasons set for th in the enclosed draft letter .” Id. That attachment, which the4 Court has reviewed in camera , is a draft letter to Bridge s Jackson proposing such a suspens ion for conduct entirely unre lated to bar licensure. Should the attachment be released ? Answering this question inv olves examining, as an initial matter, whether it is responsive to Plaintiff’s request and, next, if FOIA exemptions apply to all or parts of the document.
A. Responsive Records The threshold inquiry is whether the draft document attached to the Casey Letter is even responsive to Parker’s FOIA re quest. In other words, the statu te only compels disclosure “once an agency identifies a record it deems responsive to a FOIA req uest.” Am. Immigration Lawyers Ass’n v. Exec. Office for Immigration Review, 830 F.3d 667, 677 (D.C. Cir. 2016). Not so with non-responsive materials. While Plaintiff asked for all record s regarding Bridges Jackson’s barlapse discipline, the attachment, on its face, discusses only another unrelated disciplinary incident. OPR therefore contends that it is not responsive. S ee Def. Reply at 6-7. Considered alone, it is unclear w hether the document is encompa ssed by Parker’s FOIA request. Yet the Court need not de cide that issue, as it consi ders the draft letter’s possible responsiveness as an attachment to an already-produced responsi ve record — namely, the Casey
Letter. It is not disputed that the Ca sey Letter is, in fact, responsiv e. Although it does not comment on Bridges Jackson’s licen se to practice law or lack th ereof, OPR found it in the “file pertaining to former AUSA Bridges Jackson’s bar lapse.” Fifth Barnett Decl., ¶¶ 3, 5-6. Presumably, as a result, the Government agrees that the Casey L etter is “a responsive document.” Def. Reply at 7.5 While this does not push Parker pa st the finish line, he is now off the starting block. Significantly, the D.C. Circuit r ecently held in AILA that “if the government identifies a record as responsive to a FOIA request,” it cannot “redact particular information within the responsive record on the basis that the i nformation is non-responsive.” 8 30 F.3d at 677. In other words, a single record cannot be split into responsive and non-responsiv e bits. If the Casey Letter and its attachment are one record — i.e. , “a unit” — then FOIA requires disclosure of both together. I d. The key is understanding what it means to be a single “record.” While FOIA “provides no definition of the term ‘record,’” agencies “in effect define a ‘record’ when they undertake the process of identifying records .” Id. at 678 (emphasis added); see McGehee v. CIA, 697 F.2d 1095, 1108 (D.C. Cir. 1983). In an expansive bureaucracy, docu ments and information will not always fall into discrete sets . When collecting these material s together, an agency might combine pages into one document ( e.g. , a set of handwritten notes) or split others into multiple parts ( e.g. , a compendium of memoranda). “[T ]he dispositive point is that , once an agency itself identifies a particular docume nt or collection of material — su ch as a chain of emails — as a responsive ‘record,’” then it mu st produce the whole, absent ot her statutory exemptions that allow redactions. AILA, 830 F .3d at 678. Courts may then revi ew that determination. DOJ also provides helpful criteria “for agencies to take into a ccount when determining whether it is appropriate to di vide . . . a document into discr ete ‘records.’” Id. (citing DOJ, OIP Guidance: Determining the Scope of a FOIA Request, FOIA Update, Vol. XVI, No. 3 (1995), https://www.justice.gov/oip/blog/f oia-update-oip-guidance-determining-scope-foia-request); see Shapiro v. CIA, No. 14-19, 2017 WL 1216505, at *11 (D.D.C. Mar. 31, 2017). As Judge Christopher R. Cooper of this district ably summarized, those c onsiderations include “the requester’s intent, maintaining the integrity of the released d ocuments, the scope of the request,6 the agency’s own knowledge regardi ng storage and maintenance of documents, efficiency, cost, resource allocation, and maintain ing the public’s trust in tran sparency.” Shapiro, 2017 WL 1216505, at *11. The Court need only discuss a few of these factors, as they lar gely favor treating the Casey Letter and its attached draf t letter as one indivisible w hole. The Casey L etter, in fact, itself touches on the subject ma tter of the attachment and refe rs the recipient to examine its contents. See Casey Letter at 1 (pointing reader to “reasons s et forth in the enclosed draft letter”); see also AILA, 830 F .3d at 678 (asking how “an agency itself identifies a particular document or collection of materi al”). While OPR notes that the enclosure was not initially found in the same location as the cove r letter, that fact is not disp ositive. See Def. R eply at 7; Fifth Barnett Decl., ¶¶ 3, 5-6. For one, in the file where it was fo und, the attachment and another copy of the Casey Letter were co-lo cated. See Fifth Barnett Decl., ¶ 6. Lay requesters also are hardly privy to OPR’s numerous document-management systems, and there is no indication t hat Parker asked for the contents of some specific file and not others. S ee ECF No. 14-1 (Second Declaration of Ginae Barnett), ¶ 6; Third Barne tt Decl., ¶¶ 4-7 ; see also Shapiro, 2017 WL 1216505, at *11. From the Government’s description, moreover, the attachment appears to have been easily retrievable after a search of its records systems. See Fifth Barnett Decl., ¶ 6. Although there is no per se rule that letters a nd their attachments must be treated as one, the Court finds that these two pieces belong together. See Hal l v. CIA, 881 F. Supp. 2d 38, 62 (D.D.C. 2012) (requirin g production where agency “maintained an d controlled the documents that reference the other documents, many of them attachments”). FOIA therefore requires complete disclosure of the whole record unless information in t he Casey Letter’s attached draft document is covered by exemptions. The Court turns to that que stion next.7 B. Reasonably Segregable, Non-Exempt Material The agency must “disclose all reasonably segregable, nonexempt portions of the requested record.” Assassination Archives & Research Ctr. v. C IA, 334 F.3d 55, 58 (D.C. Cir. 2003). OPR contends that Exem ptions 5, 6, and 7(C) apply, thou gh it mentions nothing about potential segregabili ty in its briefing. See Def. Reply at 7-1 2. This Court nonetheless has an “affirmative duty to consider t he segregability issue sua sponte .” Elliott v. USDA, 596 F.3d 842, 851 (D.C. Cir. 2010) (quoting Morley v. CIA, 508 F.3d 1108, 112 3 (D.C. Cir. 2007)). It does so here in the context of t he applicable exemptions. Before the Court dives in, a f urther breakdown of the documents at issue may help the reader. First off, in Casey’s c over letter, she discusses a re cent “problem with an Assistant United States Attorney in my o ffice” unconnected with bar licen sure and mentions that she “proposed a five day suspension f or reasons set forth in the en closed draft letter ” to the AUSA. See Casey Letter at 1. That appended draft letter can then be broken up into three segments. The first introductory paragraph propos es that five-day suspension, without mentioning the specific reason, and lists the federal regulations and public agency gui dance that govern all such suspensions. The next six para graphs, spanning pages one and t wo, discuss a particular incident and the justification for tha t proposed disciplinary action. T he remainder of the attachment, from the last full paragraph on page two onward, details DOJ’s suspe nsion procedures as set forth in the aforementioned published reg ulations and public guidance. See, e.g., 5 C.F.R. §§ 752.201- .203. That last section makes no mention of the specifics of B ridges Jackson’s alleged misconduct. In now applying the invoked FOIA ex emptions, all point the same way — namely, that OPR should release both the intr oductory paragraph and the term inal part detailing DOJ8 procedures, but may redact the reasons behind the proposed susp ension. The Court discusses Exemption 5 and then Exemptions 6 and 7(C) together. First, Exemption 5 permits an agen cy to withhold “inter-agency or intra-agency memorandums or letters that w ould not be available by law to a party other than an agency in litigation with the agency,” in cluding records protected by the “deliberative process privilege.” 5 U.S.C. § 552(b)(5). That privileg e covers “documents reflectin g advisory opinions, recommendations and deliberati ons comprising part of a process by which governmental decisions and policies are formul ated.” Dep’t of Interior v. K lamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (quoting NLRB v. Sears, Roebuck & C o., 421 U.S. 132, 150 (1975)); accord In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). “The ‘key question’ in identifying ‘deliberative’ material is whe ther disclosure of the informatio n would ‘discourage candid discussion within the agency. ’” Access Reports v. DOJ, 926 F.2 d 1192, 1195 (D.C. Cir. 1991) (quoting Dudman Comms. Corp. v . Dep’t of Air Force, 815 F.2d 15 65, 1567-68 (D.C. Cir. 1987)); see Nat’l Sec. Archive v. CIA, 752 F.3d 460, 462 (D.C. Cir. 2014) (explaining purpose “to encourage the candid and fra nk exchange of ideas in the age ncy’s decisionmaking process”). As with other exemptions, “if the government can segregate and disclose non-privileged factual information within a document, it must.” Loving v. Dep ’t of Defense, 550 F.3d 32, 38 (D.C. Cir. 2008). “[T]he privilege applies only to the ‘opinio n’ or ‘recommendatory’ portion of the report, not to fact ual information which is contained in th e document.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980). The agency, moreover, may waive the privilege by placing “a specific fact . . . in the pu blic domain.” Public Citizen v. Dep’t of State, 11 F.3d 198, 201 (D.C. Cir. 1993); see Davis v. DOJ, 968 F.2d 1276, 1279 (D.C. Cir. 1992).9 These principles lead to partia l disclosure here. To begin, th e reasons for the five-daysuspension “recommendation[]” fa ll within the heartland of the privilege. See Klamath, 532 U.S. at 8 (quoting Sears, 421 U.S . at 150). Some assurance aga inst later disclosure is necessary if government employees are expected to have “candid and frank” discussions of such sensitive topics as internal discipline. See Nat’l Sec. Archive, 752 F.3 d at 462. The rest of the attachment, however, is not privileged. Its i ntroductory paragraph reveals no content other than what the cover letter itself publicly discloses — i.e. , that the U.S. Attorney planned to propose a five-day suspension. That paragraph the n cites federal regulations and agency guidance on suspension procedures, and the later paragr aphs describe those rules. See , e.g., 5 C.F.R. §§ 752.201-.203. The Court would be hard pressed t o conclude that this disclosur e of information about DOJ’s disciplinary procedures that are, in substance, already public knowledge would in any way stifle agency deliberations. See Coa stal States, 617 F.2d at 868 (rej ecting privilege as to “simply straightforward explanations of a gency regulations in specific factual situations ”). Because those portions are written in neutral language such that they are “se verable without compromising the [privileged] remainder of the document[],” EPA v. Mink, 410 U.S . 73, 91 (1973), OPR must disclose these segments. Exemptions 6 and 7(C) cast no wider a net. These two rules “se ek to protect the privacy of individuals identif ied in certain agency records.” ACLU v. DOJ, 655 F.3d 1, 6 (D.C. Cir. 2011). Exemption 6 protects “pers onnel and medical files and s imilar files” where disclosure “would constitute a clearly unwarranted invasion of personal pr ivacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C) permits a withhol ding of “records or informationcompiled for law enforcement purposes” where disclosure “could reasonably be expected to con stitute an unwarranted invasion of personal privacy.” Id. § 552(b )(7). The latter exemption “ establishes a lower bar for10 withholding material.” ACLU , 655 F.3d at 6. As the Court held last time with similar documents regarding internal inve stigations of AUSA misconduct, this attachment constitutes a law-enforcement record such that the more liberal Exemption 7(C ) applies. Parker, 214 F. Supp. 3d at 86. The Court thus need not consider Exemption 6. Id. As with the deliberative-process privilege, the Court must ask if portions that do not implicate privacy can be segregated and released. See Shapiro v. DOJ, No. 13-555, 2017 WL 908179, at *2 (D.D.C. Mar. 6, 2017). The agency likewise may n ot rely on Exemption 6 or 7(C) to withhold “information that has been ‘officially acknowledged ’ or is in the ‘public domain.’” Bartko v. DOJ, 62 F. Supp. 3d 134, 142 ( D.D.C. 2014) (quoting D avis, 968 F.2d at 1279). The result, then, is very much the same. First off, these priv acy exemptions may protect the descriptions of Bridges J ackson’s alleged wrongdoing and th e reasons for why that conduct warranted discipline. As the Cour t previously held, OPR may wi thhold the details of “internal disciplinary actions consider ed or taken.” Parker, 214 F. Supp . 3d at 87-89. While those middle paragraphs may be redacted, the rest must be released. The att achment’s introductory paragraph includes “specific information in the public domain that appear s to duplicate that being withheld” — to wit, the proposal o f a five-day suspension. Wol f v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007) (quoting Afsha r v. Dep’t of State, 702 F.2d 11 25, 1130 (D.C. Cir. 1983)); see Casey Letter at 1 (“I proposed a five day suspension for reason s set forth in the enclosed draft letter.”). The remainder of the first paragraph and the final section of the attachment, again, reveal nothing more than neutral summaries of applicable agencyregulations that contain only public information, not private f acts about Bridges Jackson.11 In sum, of the full Casey Letter attachment, Defendant must rel ease the first paragraph and the portion beginning with the last full paragraph of page two until the end of the document. The rest it may elect to redact.
III. Conclusion For these reasons, the Court wi ll grant in part and deny in par t OPR’s Motion for Summary Judgment and grant in pa rt and deny in part Parker’s Cr oss-Motion for Summary Judgment. The Court will also o rder Defendant to release porti ons of the Casey Letter attachment to Plaintiff within f ourteen days. A separate Order so stating will issue this day.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: August 16, 2017