Jefferson v. Dept. of Justice, Office of Professional Responsibility

Dissenting opinion filed by Circuit Judge Randolph.

Willie Jefferson appeals the grant of summary judgment to the Justice Department on his request under the Freedom of Information Act (“FOIA”), 5 U.S.C. s 552(a) (1996 & West Supp. 2001), for “any and all records created by and/or received by the … Office of Professional Responsibility (“OPR”) in regards to Assistant United States Attorney (“AUSA”) Jeffrey Scott Downing.” Previously, this court affirmed the grant of summary judgment insofar as Jefferson did not challenge the district court’s segregability determination or the government’s reliance on 5 U.S.C. s 552(b)(2) (“Exemption 2″) and s 552(b)(5) (“Exemption 5″) to redact certain material. Order, May 14, 2001. Thus, the only question now before the court is whether the government properly relied on s 552(b)(7)(C) (“Exemption 7(C)”) in redacting certain other documents that it released to Jefferson, and in refusing “to confirm or deny the existence of any additional responsive records,” the so-called Glomar response. Id. We hold, on de novo review, that the district court correctly concluded that OPR compiled the files that it released to Jefferson for law enforcement purposes, and that the redacted information in these files falls within Exemption 7(C). However, because OPR was not entitled to make a Glomar response as to all of its files in the absence of an evidentiary showing to support that response, we remand the case to the district court to determine whether OPR had nonlaw enforcement files regarding AUSA Downing as of December 2, 1999, the date of OPR’s response to Jefferson’s FOIA request. See Bonner v. Dep’t of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991).