Subpoenaed Lawyers Can Keep Fighting for Records

WASHINGTON (CN) - The Justice Department must search again for records demanded by a married legal powerhouse, a federal judge ruled.

Before starting their own private law practice, Victoria Toensing and Joseph DiGenova both worked as government attorneys. Toensing had been a deputy assistant attorney general in the Justice Department's criminal division, former chief counsel for the late Sen. Barry Goldwater, and chairwoman of the U.S. Senate Select Committee on Intelligence. DiGenova worked as a U.S. attorney for the District of Columbia, prosecuting would-be Reagan assassin John Hinckley and Jonathan Pollard, who was convicted of spying for Israel.

In September 2000, the couple represented Thomas Gordan, a county executive for New Castle, Del., accused of misusing government funds. As the investigation expanded in 2002, U.S. Attorney Colm Connolly subpoenaed Toensing and DiGenova regarding "the retention of defamation counsel on behalf of [New Castle] County."

As the couple fought the subpoenas, the trial court eventually vacated them as moot. Beginning in 2007, the couple then submitted eight requests under the Freedom of Information Act for records related to the Gordon investigation.

When the couple sent three identical requests to the Executive Office of the U.S. Attorney and the Justice Department's criminal division in 2007, those offices produced some records, claimed exemptions on others and explained the process to appeal the withheld records administratively.

Toensing submitted another request in 2008 for records related to Connolly's alleged prosecutorial misconduct. She claims that the attorney sent New Castle County employee Shawn Tucker to speak with her while wearing a hidden recording device.

Toensing says the Executive Office did not perform any search for these records.

She and her husband never appealed the outcomes of any of these initial requests, yet they submitted identical requests for more records in 2009 and 2010. Though they filed administrative appeals pertaining to the 2009 requests, they did not file a federal complaint that year. They filed suit after Justice Department's Office of Information and Privacy closed their last administrative appeal in 2011.

U.S. District Judge Beryl Holwell sided with the government on several issues last week but called for a further search of subpoena records.

"Mere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search for them," Holwell wrote. The judge granted the government summary judgment as to its search related to the alleged taping of Toensing's conversation.

She dismissed claims regarding the materials that the government withheld under FOIA exemptions after finding that the couple failed to exhaust their administrative remedies.

"Indeed, the course taken by the plaintiffs could be viewed as an end run around the FOIA's and the defendant's administrative exhaustion requirements because, if the plaintiffs' course were generally available, FOIA requesters who failed to exhaust their administrative remedies the first time around could routinely cure any failure to exhaust by simply filing a subsequent duplicative request seeking the same records," Holwell wrote.

The government must conduct a more adequate search for subpoena-related records on remand the Justice Department.

Ironically, according to her biography as posted on the diGenova & Toensing website, while chief counsel to Sen. Goldwater, Toensing says she was "instrumental in winning passage of [a bill] ... to protect certain classified information from disclosure under the Freedom of Information Act."

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