Virginia Lawyers Weekly//September 25, 2023
Virginia Lawyers Weekly//September 25, 2023//
Where the United States Patent and Trademark Office, or USPTO, redacted confidential, sensitive and privileged information from bar disciplinary hearings before producing the documents to an expelled attorney, it prevailed in a suit challenging the redactions.
Richard Polidi, an attorney who had been expelled from the patent bar, submitted a request for documents to the USPTO, seeking information related to the USPTO’s investigation into and disciplinary proceedings against him. The USPTO ultimately disclosed several pages to plaintiff, some in full and some with redactions pursuant to the Freedom of Information Act, or FOIA. In this lawsuit, plaintiff challenges the propriety of those redactions. The USPTO has filed a motion for summary judgment.
The USPTO posits that, in response to plaintiff’s second FOIA request, it ultimately provided all 103 pages (23 pages in full and 80 pages with partial redactions) of documents identified in its original search in response to plaintiff’s first FOIA request. For that reason, and to “prevent the doctrine of administrative exhaustion from precluding plaintiff’s FOIA claim outright,” the USPTO argues that the court should review its response to plaintiff’s second FOIA request as an amended response to his first request. Plaintiff has not opposed such. Where a party fails to respond to an argument, the court may consider the argument conceded.
Exemptions 6 and 7(C)
Defendant asserts that “over ninety-five percent (95%) – of the USPTO’s withholding consisted of targeted redactions to the identities and contact information of third parties … as well as extremely private topics … concerning those third parties pursuant to FOIA exemptions (b)(6) and (b)(7)(C).”
The court finds the USPTO has demonstrated that the files at issue are of the type considered by 5 U.S.C. § 552(b)(6). According to a USPTO FOIA officer, the documents originated from disciplinary proceedings by the North Carolina State Bar against plaintiff. The court finds these documents to be “similar” to a personnel file, “the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”
The court finds the individuals’ privacy interests here are substantial and outweigh the public interest in disclosure. The redactions here protected the identity and medical information of the victim of plaintiff’s alleged misconduct, as well as that of her family. Disclosure of such information would reveal little to nothing about the USPTO’s conduct, or the way in which the USPTO investigates alleged misconduct by practitioners. Thus, the personal information about the alleged victim and her family was appropriately withheld by the USPTO pursuant to Exemption 6.
The court next considers the redactions made pursuant to Exemption 7(C), which shields “records or information compiled for law enforcement purposes” that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The court finds no public interest in the disclosure of the names and contact information of government employees involved in the investigation into plaintiff’s alleged misconduct. Accordingly, the court finds that personal information about the government employees involved in plaintiff’s investigation was appropriately withheld by the USPTO pursuant to Exemption 7(C).
The court next considers the redactions made pursuant to Exemption 5, which shields from disclosure documents protected by the attorney-client privilege and the deliberative process privilege. The FOIA officer explains that “the USPTO affixed redactions to protect information related to the mental impressions associated with the North Carolina State Bar in anticipation of disciplinary proceedings, pursuant to … the exemption for attorney work product.”
Defendant further posits that the redacted information “was both (1) prepared by an attorney and (2) prepared in anticipation of potential administrative or judicial litigation into those allegations of misconduct against plaintiff.” Given these representations, the court finds that the USPTO has met its burden in demonstrating that the withheld information, created in the course of a disciplinary proceeding against plaintiff, was both predecisional and deliberative. Thus, the USPTO was justified in redacting this information pursuant to Exemption 5.
The court finds that the USPTO disclosed all reasonably segregable information to plaintiff. The court finds that the FOIA officer’s declaration “fairly describes the content of the material withheld and adequately states its grounds for nondisclosure” and that “those grounds are reasonable and consistent with the applicable law[.]” Accordingly, the court finds that the USPTO has properly segregated the withheld information.
Defendant’s motion for summary judgment granted.
Polidi v. Mendel, Case No. 1:22-cv-00925, Sept. 1, 2023. EDVA at Alexandria (Giles). VLW 023-3-543. 11 pp.