Case Detail

FOIA Project Annotation: A federal court in Alabama has ruled that the Justice Department's Office of Professional Responsibility properly invoked a Glomar response neither confirming nor denying the existence of records based on both Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records) in response to a request from the law firm of White, Arnold & Dowd for records pertaining to any complaints filed against Matt Hart, a former U.S. Assistant Attorney in Alabama, who had since gone to work for the Alabama Attorney General. As part of his work for the Attorney General, Hart investigated corruption charges against Michael Hubbard, the former Speaker of the Alabama House of Representatives. Hubbard was charged with 23 counts related to misusing his office for personal gain. He was convicted of 12 charges and was removed from office. Part of Hubbard's defense was to accuse Hart of prosecutorial misconduct. After his conviction, the law firm of White, Arnold & Dowd requested all complaints filed against Hart in his previous job as an AUSA. The Office of Professional Responsibility issued a Glomar response indicating that disclosure of such records would invade Hart's privacy and that disclosure of records concerning a single non-supervisory attorney would not shed any light on government activities or operations. The law firm argued that because allegations of Hart's misconduct in the Hubbard investigation were public he no longer had a cognizable privacy interest in non-disclosure. The court noted that the law firm's FOIA request did not pertain to records that were public. The court pointed out that "the actual request seeks information relating to complaints made against Hart in the possession of OPR. The court finds that the evidence does not establish that the existence or non-existence of any documents concerning any such complaints has not been publicly disclosed." The law firm argued that Hart had publicly acknowledged the existence of such complaints during a conversation with a co-worker. But the court observed that "the issue is not whether allegations of misconduct by Hart had been made public. They have. The question is whether the existence or non-existence of documents regarding complaints to DOJ or OPR against Hart has been made public. . .A conversation with a co-worker is not a 'public disclosure' regarding the existence or non-existence of records regarding a complaint." The court found the co-worker's testimony in the Hubbard case about alleged misconduct by Hart while working at the Alabama Attorney's General's Office was not relevant either. The court noted that "this evidence has no relation to complaints against Hart while he was employed by the U.S. Attorney's office." The court agreed that Hart had a privacy interest under both Exemption 6 and Exemption 7(C). Addressing the potential public interest in disclosure of the existence of Hart's complaint records, the court agreed that "information regarding complaints about one non-supervisory AUSA does not say enough about 'government operations' to outweigh Hart's significant privacy interests in that information."
Issues: Determination - Glomar response, Exemption 6 - Invasion of privacy, Exemption 7(C) - Invasion of privacy concerning law enforcement records

Date Filed	Doc #	Docket Text
2015-05-20	1	COMPLAINT against the Department of Justice, Office of Professional Responsibility, filed by White Arnold & Dowd P.C.. (Attachments: # 1 Exhibit 1 & 2, # 2 Civil Cover Sheet)(JLC) (Entered: 05/20/2015)
2015-05-22	2	Request for service by certified mail filed by White Arnold & Dowd P.C.. (Dowd, Augusta) (Entered: 05/22/2015)
2015-05-26	3	ORDER OF RECUSAL. Judge James H Hancock hereby RECUSES himself from this case. This case is hereby reassigned to Magistrate Judge Staci G Cornelius for all further proceedings. Please use case number 2:15-cv-837-SGC on all future proceedings. Signed by Judge James H Hancock on 5/26/2015. (JLC) (Entered: 05/26/2015)
2015-05-26	4	NOTICE REGARDING CONSENT (MRR ) (Entered: 05/26/2015)
2015-05-26		Filing fee:$ 400, receipt number ALND B4601062430 (MRR ) . (Entered: 05/28/2015)
2015-05-27	5	ORDER- Magistrate Judge Staci G. Cornelius, recused. Case reassigned to Magistrate Judge John H England, III for all further proceedings. Please use case number 2:15-cv-837-JHE on all subsequent pleadings. Signed by Magistrate Judge Harwell G Davis, III on 5/27/15. (MRR ) (Entered: 05/27/2015)
2015-05-28	6	Summons Issued as to Department of Justice (3)-returned to pltf for service (MRR ) (Entered: 05/28/2015)
2015-05-29	7	ORDER OF RECUSAL. Signed by Magistrate Judge John H England, III on 5/29/2015. (KEK) (Entered: 05/29/2015)
2015-05-29	8	NOTICE OF REASSIGNMENT - The above-styled civil action has been reassigned to the Honorable R. David Proctor. Please use case number 2:15-cv-837-RDP on all subsequent pleadings. (KEK) (Entered: 05/29/2015)
2015-05-29	9	RETURN OF SERVICE by White Arnold & Dowd P.C. Return of Service U.S. Attorney's Office for the Northern District of Alabama (White, J) (Entered: 05/29/2015)
2015-06-08	10	RETURN OF SERVICE by White Arnold & Dowd P.C. (White, J) (Entered: 06/08/2015)
2015-06-08	11	RETURN OF SERVICE by White Arnold & Dowd P.C. (White, J) (Entered: 06/08/2015)
2015-06-09		Set/Reset Deadlines: Department of Justice answer due 7/3/2015. (AVC) (Entered: 06/09/2015)
2015-06-29	12	ANSWER to 1 Complaint by Department of Justice.(Bennett, Michelle) (Entered: 06/29/2015)
2015-06-30	13	INITIAL ORDER GOVERNING ALL FURTHER PROCEEDINGS-reminding parties of their obligations under FRCP 26(f) and LR26.1(d) - with appendices attached. Signed by Judge R David Proctor on 6/30/2015. (AVC) (Entered: 06/30/2015)
2015-08-14	14	Joint MOTION to Set Briefing Schedule by Department of Justice. (Bennett, Michelle) (Entered: 08/14/2015)
2015-08-17	15	ORDER granting 14 Joint Motion to Set Briefing Schedule. The parties SHALL brief the matter as set out. Signed by Judge R David Proctor on 8/17/2015. (AVC) (Entered: 08/17/2015)
2015-09-24	16	MOTION to Withdraw Rebecca G. DePalma as Counsel by White Arnold & Dowd P.C.. (Dowd, Augusta) (Entered: 09/24/2015)
2015-09-24	17	TEXT ORDER - Before the court is Plaintiff's Motion to Withdraw Rebecca G. DePalma as Counsel 16 . The Motion 16 is GRANTED. The Clerk of the Court is hereby directed to ADMINISTRATIVELY TERMINATE Ms. DePalma from this case. Signed by Judge R David Proctor on 9/24/2015. (AVC) (Entered: 09/24/2015)
2015-10-02	18	MOTION for Summary Judgment by Department of Justice. (Attachments: # 1 Declaration of Ginae Barnett (with exhibits))(Bennett, Michelle) (Entered: 10/02/2015)
2015-11-02	19	OBJECTION to and Motion to Strike 18 the Affidavit of Ginea Barnett by White Arnold & Dowd P.C.. (Bolvig, Kelly) (Entered: 11/02/2015)
2015-11-02	20	MOTION for Vaughn Index or Alternatively, In Camera Inspection by White Arnold & Dowd P.C. (Bolvig, Kelly) (Entered: 11/02/2015)
2015-11-02	21	BRIEF in Support of Motion for Vaughn Index by White Arnold & Dowd P.C.. (Bolvig, Kelly) (Entered: 11/02/2015)
2015-11-02	22	Opposition to 18 Motion for Summary Judgment and Cross-Motion for Summary Judgment filed by White Arnold & Dowd P.C. (Attachments: # 1 Exhibit One, # 2 Exhibit Two)(Bolvig, Kelly) (Entered: 11/02/2015)
2015-11-06	23	MOTION for an Extension of Time by Department of Justice. (Bennett, Michelle) (Entered: 11/06/2015)
2015-11-09	24	ORDER granting 23 Motion for Extension of Time. Dft SHALL file all of its reply and responses to Pltf's Motions and Cross-Motion by 11/24/2015. Pltf SHALL file any replies by 12/22/2015. Signed by Judge R David Proctor on 11/9/2015. (AVC) (Entered: 11/09/2015)
2015-11-24	25	REPLY Brief filed by Defendant Department of Justice re: 18 MOTION for Summary Judgment , 20 MOTION for Vaughn Index or Alternatively, In Camera Inspection, 19 OBJECTION to and Motion to Strike 18 the Affidavit of Ginea Barnett, 22 Response in Opposition to Motion filed by Department of Justice. (Attachments: # 1 Exhibit A)(Bennett, Michelle) (Entered: 11/24/2015)
2015-12-22	26	REPLY in Support of Plaintiff's Motion for Summary Judgment filed by White Arnold & Dowd P.C. (Attachments: # 1 Exhibit 1 to Reply)(Dowd, Augusta) (Entered: 12/22/2015)
2016-02-03	27	MOTION for Leave to Supplement the Record and to Amend Countermotion for Summary Judgment Based on Recently Disclosed Evidence of Wrongdoing by White Arnold & Dowd P.C. (Attachments: # 1 Exhibit Affidavit of Baron Coleman)(Dowd, Augusta) (Entered: 02/03/2016)
2016-02-08	28	Unopposed MOTION for Extension of Time by Department of Justice. (Bennett, Michelle) (Entered: 02/08/2016)
2016-02-09	29	TEXT ORDER - This case is SET for a phone conference on February 11, 2016, at 1:30 p.m. , concerning, among other matters, Plaintiff's Motion for Leave to Supplement the Record and to Amend Countermotion for Summary Judgment Based on Recently Disclosed Evidence of Wrongdoing 27 and Defendant's Unopposed Motion for an Extension of Time 28 . The court will initiate the call. Signed by Judge R David Proctor on 2/9/2016. (AVC) (Entered: 02/09/2016)
2016-02-11		Minute Entry for proceedings held before Judge R David Proctor: Telephone Conference held on 2/11/2016. The court will enter a separate order as indicated at the conference. (KLL) (Entered: 02/11/2016)
2016-02-12	30	ORDER-re: Unopposed Motion for an Extension of Time 28 . The motion is GRANTED, and the court ORDERS that Pltf SHALL disclose to Dft by 3/1/2016, any additional material with which it seeks to supplement the record in this case. The parties SHALL submit a joint report by 3/17/2016, setting for the parties' positions and proposed scheduled for resolving this case. The Motion for Summary Judgment 18 , Objection and Motion to Strike the Affidavit of Ginae Barnett 19 , Motion for Vaughn Index or Alternatively, In Camera Inspection 20 are TERMINATED. Pltf's Motion for Leave to Supplement the Record and to Amend Countermotion for Summary Judgment Based on Recently Disclosed Evidence of Wrongdoing 27 is MOOT. Signed by Judge R David Proctor on 2/12/2016. (AVC) (Entered: 02/12/2016)
2016-02-26	31	NOTICE of Filing Partial Supplemental Materials by White Arnold & Dowd P.C. (Attachments: # 1 Exhibit A, Part 1 to Notice, # 2 Exhibit A, Part 2 to Notice, # 3 Exhibit B to Notice)(Dowd, Augusta) (Entered: 02/26/2016)
2016-03-17	32	JOINT REPORT by Department of Justice. filed (Bennett, Michelle) (Entered: 03/17/2016)
2016-03-18	33	TEXT ORDER - This case is before the court on the parties' March 17, 2016 Joint Report 32 . In the Report 32 , the parties request an extension of time for Plaintiff to submit supplemental materials and for the parties to propose a schedule to resolve this case. The parties' request is GRANTED . Plaintiff SHALL disclose to Defendant by April 18, 2016 , any additional materials with which it seeks to supplement the record. The parties SHALL submit a joint report on or before May 2, 2016 , setting forth their positions and proposed schedule for resolving this case. Absent good cause, this court will not grant any more extensions in this case for the purposes of obtaining materials from state proceedings. Signed by Judge R David Proctor on 3/18/16. (AVC) (Entered: 03/18/2016)
2016-04-18	34	NOTICE of Second Filing of Partial Supplemental Materials by White Arnold & Dowd P.C. (Attachments: # 1 Exhibit A, Part 1, # 2 Exhibit A, Part 2, # 3 Exhibit A, Part 3, # 4 Exhibit A, Part 4, # 5 Exhibit A, Part 5)(Dowd, Augusta) (Entered: 04/18/2016)
2016-05-02	35	JOINT REPORT by White Arnold & Dowd P.C. (Dowd, Augusta) (Entered: 05/02/2016)
2016-05-03	36	ORDER granting supplemental briefing schedule re: cross-motion for summary judgment; dft shall file supplemental brief by 5/23/2016; pla shall respond by 6/3/2016. Signed by Judge R David Proctor on 5/3/2016. (KAM, ) (Entered: 05/03/2016)
2016-05-23	37	Supplemental Brief in Opposition to 36 Motion to Supplement the Record and In Support of Defendant's Motion for Summary Judgment filed by Department of Justice. (Attachments: # 1 Second Declaration of Ginae Barnett)(Bennett, Michelle) (Entered: 05/23/2016)
2016-06-03	38	RESPONSE to 37 Supplemental Brief in Opposition to Plaintiff's Motion to Supplement the Record and In Support of Defendant's Motion for Summary Judgment filed by White Arnold & Dowd P.C. (White, J) (Entered: 06/03/2016)
2017-06-02	39	MEMORANDUM OPINION. Signed by Judge R David Proctor on 6/2/2017. (KAM, ) (Entered: 06/02/2017)
2017-06-02	40	ORDER of DISMISSAL in accordance with the accompanying memo opn, granting 18 motion for summary judgment; denying 20 motion for Vaughn index or alternatively, in camera inspection; denying 22 cross motion for summary judgment; pla White Arnold & Downd PC's claims are Dismissed with prejudice; costs taxed against the plaintiff. Signed by Judge R David Proctor on 6/2/2017. (KAM, ) (Entered: 06/02/2017)
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