Murphy v. Executive Office for United States Attorneys , 789 F.3d 204 ( 2015 )


Menu:
  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued May 12, 2015                     Decided June 16, 2015
    No. 14-5044
    JAMES E. MURPHY,
    APPELLANT
    v.
    EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS,
    APPELLEE
    Appeal from the United States District Court
    for the District of Columbia
    (No. 1:13-cv-00573)
    Ishan K. Bhabha, appointed by the court, argued the cause
    for the appellant. David W. DeBruin and Paul M. Smith,
    appointed by the court, were with him on brief.
    James E. Murphy, pro se, filed the brief for the appellant.
    Peter R. Maier, Assistant United States Attorney, argued
    the cause for the appellee. Ronald C. Machen Jr., United
    States Attorney at the time the brief was filed, and R. Craig
    Lawrence, Assistant United States Attorney, were with him on
    brief. Dionne S. Shy, Assistant United States Attorney,
    entered an appearance.
    2
    Before: HENDERSON, ROGERS and MILLETT, Circuit
    Judges.
    Opinion for the Court filed by Circuit Judge HENDERSON.
    KAREN LECRAFT HENDERSON, Circuit Judge: James
    Murphy is a federal prisoner. He submitted a request under
    the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to the
    Executive Office for United States Attorneys (EOUSA), a part
    of the United States Department of Justice. See Harris v.
    Gonzales, 
    488 F.3d 442
    , 443 (D.C. Cir. 2007). FOIA requires
    federal agencies to produce “records” upon request unless one
    of nine statutory exemptions applies.                5 U.S.C.
    § 552(a)(3)(A). Murphy sought grand jury information for
    two criminal cases. The EOUSA gave Murphy most of the
    information that he requested but it declined to disclose the
    dates and times of day that the grand jury met to hear testimony
    and consider evidence in the two cases. The EOUSA invoked
    exemption 3 to justify its non-disclosure.               Murphy
    contends—unsurprisingly—that exemption 3 is inapplicable
    and filed suit to compel the EOUSA to disclose the withheld
    material. The district court ultimately held that exemption 3
    was properly invoked and granted summary judgment to the
    EOUSA. We affirm.
    I
    FOIA implements “a general philosophy of full agency
    disclosure.” DOJ v. Reporters Comm. for Freedom of the
    Press, 
    489 U.S. 749
    , 754 (1989). The statute requires federal
    agencies to make “records promptly available” when an
    individual submits a “request for records which (i) reasonably
    describes such records and (ii) is made in accordance with
    published rules.” 5 U.S.C. § 552(a)(3)(A). An agency,
    however, can reject the request if it “fall[s] within one of nine
    3
    exemptions.” Milner v. Dep’t of Navy, 
    131 S. Ct. 1259
    , 1262
    (2011); see 5 U.S.C. § 552(b)(1)–(9). The United States
    Supreme Court has stated that the exemptions must be
    “narrowly construed” because “the mandate of the FOIA calls
    for broad disclosure of Government records.” DOJ v. Julian,
    
    486 U.S. 1
    , 8 (1988) (alteration omitted). The Court has also
    cautioned, however, that each exemption must be given
    “meaningful reach and application.” John Doe Agency v.
    John Doe Corp., 
    493 U.S. 146
    , 152 (1989).
    The exemption relevant here is exemption 3, which
    permits an agency to withhold records that are “specifically
    exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3).
    We have recognized that “requests for documents related to
    grand jury investigations implicate FOIA’s third exemption.”
    Lopez v. DOJ, 
    393 F.3d 1345
    , 1349 (D.C. Cir. 2005). Rule
    6(e) of the Federal Rules of Criminal Procedure prohibits
    certain persons designated therein (including government
    attorneys) from “disclos[ing] a matter occurring before the
    grand jury,” FED. R. CRIM. P. 6(e)(2)(B), and, although a rule is
    not generally considered to be a statute, it qualifies as one
    under FOIA because the Congress has enacted it into positive
    law. See Fund for Constitutional Gov’t v. Nat’l Archives and
    Records Serv., 
    656 F.2d 856
    , 867–68 (D.C. Cir. 1981) (citing
    Pub. L. No. 95-78, § 2(a), 91 Stat. 319 (1977)). Hence,
    information related to a grand jury matter may be withheld
    under exemption 3 “if the disclosed material would tend to
    reveal some secret aspect of the grand jury’s investigation,
    including the identities of witnesses.” Hodge v. FBI, 
    703 F.3d 575
    , 580 (D.C. Cir. 2013) (quotation marks omitted).
    In 2008, Murphy was charged with distribution,
    possession and conspiracy to distribute and possess heroin and
    crack cocaine. See United States v. Murphy, 460 F. App’x
    122, 123 (3d Cir. 2012). He was convicted of both counts
    4
    after a two-day jury trial and sentenced to 360 months’
    imprisonment. 
    Id. In 2013,
    Murphy submitted two FOIA
    requests to the EOUSA for “information and documents.”
    Joint Appendix (JA) 25, 31. His first FOIA request asked for:
    disclosure of the dates that the grand jury
    convened in reference to case # 1:08-CR-00433
    and case # 1:08-CR-314 filed in U.S. District
    Court for the Middle District of Pennsylvania
    including the names [sic] of the Judge who
    summoned the grand jury, the date the
    indictments were returned, the date they were
    discharged, the starting and ending date of the
    grand jury’s term, and a certified copy of the
    courts [sic] minute entries.
    
    Id. at 39.
    Case number 08-CR-00433 is Murphy’s criminal
    case and case number 08-CR-00314 is a criminal case
    involving Richard Byrd.
    Approximately two months later, Murphy submitted a
    second FOIA request that sought:
    disclosure of the dates the grand jury issued the
    indictments pertaining to criminal No.
    1:08-CR-314 and 1:08-CR-0433 . . . including
    the dates and times of sessions the grand jury
    convened, whether it was summoned pursuant
    to Fed. R. Crim. P. 6(a), or 18 U.S.C. 1331, and
    the certified letter requesting the special grand
    jury . . . the caption of the indictment . . . [and]
    an unredacted copy of the indictment of Case
    No. 1:08-CR-314 pursuant to Fed. R. Crim. P.
    49.1(b)(9).
    5
    
    Id. at 42.
    Before the EOUSA responded to his requests,
    Murphy filed suit in federal district court. 1 He challenged the
    EOUSA’s invocation of exemption 3 and alleged that the grand
    jury indictments were inaccurate and that the EOUSA’s search
    for records was inadequate. He asked the court to order the
    EOUSA to produce the “agency records previously requested
    by [him].” Am. Compl. ¶ 1.
    After Murphy filed his complaint, the EOUSA responded
    to both of his FOIA requests. It first told Murphy that it
    intended to disclose “all records required to be released, or
    considered appropriate for release as a matter of discretion.”
    JA 45. These included “the date the grand jury was impaneled
    and expired; the name of the judge who supervised the grand
    jury; [and] the date on which the grand jury was convened and
    returned an indictment for each particular criminal case.” 
    Id. at 37.
    It also disclosed that both of the “grand juries . . . were
    summoned pursuant to Fed. R. Crim. P. 6(a).” 
    Id. at 47.
    Other than its disclosure of the date on which the grand jury
    issued indictments, the EOUSA declined to provide the
    specific dates and “times the grand juries convened” between
    the date of empanelment and the date each grand jury was
    discharged “in order to protect the identity of witnesses and the
    1
    Murphy properly filed suit before the EOUSA responded to his
    requests because he had constructively exhausted his administrative
    remedies. “As a general matter, a FOIA requester must exhaust
    administrative appeal remedies before seeking judicial redress.”
    Citizens for Responsibility and Ethics in Wash. v. FEC, 
    711 F.3d 180
    , 182 (D.C. Cir. 2013). But a requester “shall be deemed to have
    exhausted his administrative remedies with respect to [his] request”
    if the agency does not respond to the FOIA request within 20
    business days. 5 U.S.C. § 552(a)(6)(A)(i), (C)(i). The EOUSA
    did not timely respond to Murphy’s FOIA requests and Murphy then
    began this litigation.
    6
    secrecy of the grand jury proceedings.” 
    Id. It invoked
    exemptions 3 and 7(C) to support its decision. 2 
    Id. Less than
    one month after responding to Murphy’s second
    FOIA request, the EOUSA moved for summary judgment.
    The district court granted the motion in part. See Murphy v.
    EOUSA, 
    11 F. Supp. 3d 1
    , 3 (D.D.C. 2013). It held that
    Murphy’s claims regarding the accuracy of the records and the
    adequacy of the government’s search were premised on a
    “misunderstanding.” 
    Id. at 5.
    According to the court,
    Murphy’s claim that some of the records were inaccurate and
    that others did not disclose what he “expected to find” did not
    amount to a FOIA violation. 
    Id. It then
    found the EOUSA’s
    declaration, executed by EOUSA attorney advisor Kathleen
    Brandon, insufficient because it contained only one “obscure
    statement” related to exemption 3. 
    Id. at 6.
    The court
    therefore ordered the EOUSA to disclose each date and the
    times of day on each date that the grand jury convened to
    consider Murphy’s and Byrd’s cases. 3 
    Id. at 7.
    2
    Exemption 7(C) permits an agency to withhold records “compiled
    for law enforcement purposes” if disclosure of such records “could
    reasonably be expected to constitute an unwarranted invasion of
    personal privacy.” 5 U.S.C. § 552(b)(7). Because we hold that the
    EOUSA properly invoked exemption 3, we do not address whether it
    also properly invoked exemption 7(C). See Larson v. Dep’t of
    State, 
    565 F.3d 857
    , 862–63 (D.C. Cir. 2009) (“agencies may invoke
    the exemptions independently and courts may uphold agency action
    under one exemption without considering the applicability” of
    others).
    3
    So that the record is clear, we describe exactly the information
    that was disclosed to Murphy. Murphy requested and received the
    date the grand jury was empaneled, the date the grand jury returned
    indictments and the date the grand jury was discharged. In his
    7
    second FOIA request, Murphy explicitly requested “the dates and
    times of sessions the grand jury convened” whenever the grand jury
    met to consider his case and Byrd’s case during the approximately
    six-month period between empanelment and discharge. JA 42; see
    also supra pp. 4–6 (describing Murphy’s FOIA requests and
    EOUSA’s response thereto). The EOUSA did not disclose that
    information to Murphy but did disclose it to the district court in
    camera. See Murphy v. EOUSA, 
    11 F. Supp. 3d 7
    , 9 (D.D.C. 2014)
    (district court reviewed in camera “the documents which contain . . .
    the requested times that the grand jury convened”). The EOUSA
    also disclosed the same material to this Court in camera. The
    EOUSA counsel confirmed in a post-argument letter to this Court
    that the dates and times of day the grand jury met to consider
    Murphy’s and Byrd’s cases have not been disclosed to Murphy.
    Therefore, the only information in dispute—and the only
    information Murphy has not yet received—covers the dates and
    times of day the grand jury met to consider Murphy’s and Byrd’s
    cases as distinct from the dates the grand jury issued its indictments
    in the two cases.
    What confusion may have existed is likely due to Murphy’s use
    of “convene.” “Convene” usually refers to the empanelment of the
    grand jury. See Convene, BLACK’S LAW DICTIONARY (10th ed.
    2014) (“To call together, esp. for a formal meeting; to cause to
    assemble.”); see also, e.g., In re Sealed Case, 
    199 F.3d 522
    , 523
    (D.C. Cir. 2000) (independent counsel “convened a grand jury to
    consider evidence”). The EOUSA disclosed that information to
    Murphy. JA 45 (releasing the date the grand jury was empaneled to
    Murphy). But he also asked for the “dates and times of sessions the
    grand jury convened” to consider both his case and Byrd’s case. 
    Id. at 42
    (emphasis added). We take him to mean the dates and times
    the grand jury met to consider evidence or to deliberate in his and
    Byrd’s cases separate from the dates the grand jury indictments
    issued. Amicus agrees with our interpretation of Murphy’s FOIA
    request. See Amicus Br. 16 (Murphy has “the dates the grand juries
    began their sessions” but not the dates and times of day “the grand
    juries were in session” after empanelment).
    8
    Both parties moved for reconsideration. See 
    Murphy, 11 F. Supp. 3d at 8
    . The EOUSA also filed a supplemental
    declaration, again executed by Brandon, in support of its
    motion. The district court noted that Murphy’s motion for
    reconsideration contained the same arguments he had
    previously made regarding the adequacy of the search and the
    accuracy of the records. See 
    id. at 8–9.
    Because he did not
    identify “an intervening change in the law,” “new evidence not
    previously available” or “a clear error in the first order,” the
    district court denied his motion. 
    Id. The district
    court, however, granted the EOUSA’s motion
    for reconsideration after reviewing the withheld material in
    camera and concluding that it “contain[ed] information that
    would reveal secret aspects of a grand jury investigation.” 
    Id. at 9.
    Additionally, the court held that the withheld material
    was “inextricably intertwined” with non-exempt information,
    making it infeasible to segregate and produce any unprotected
    information. 
    Id. Accordingly, it
    granted summary judgment
    to the EOUSA. 
    Id. Murphy timely
    appealed. We appointed
    amicus curiae to present arguments in support of Murphy’s
    position.
    II
    We review de novo the district court’s grant of summary
    judgment. McKinley v. Bd. of Governors of Fed. Reserve
    Sys., 
    647 F.3d 331
    , 335 (D.C. Cir. 2011). Our task on appeal
    is to “ascertain whether the agency has sustained its burden of
    demonstrating that the documents requested are exempt from
    disclosure under the FOIA.” Newport Aeronautical Sales v.
    Dep’t of Air Force, 
    684 F.3d 160
    , 164 (D.C. Cir. 2012)
    (alteration omitted). An agency can meet this burden by
    submitting “affidavits [that] describe the justifications for
    nondisclosure with reasonably specific detail” and
    9
    “demonstrate that the information withheld logically falls
    within the claimed exemption.” 
    Larson, 565 F.3d at 862
    .
    We have emphasized that an agency’s task is not herculean.
    The justification for invoking a FOIA exemption is sufficient if
    it “appears logical or plausible.” 
    Id. (quotation marks
    omitted). We believe the EOUSA’s basis for invoking
    exemption 3 is both logical and plausible.
    The EOUSA’s supplemental Brandon Declaration
    explains why releasing the dates and times of day the grand
    jury convened to consider Murphy’s and Byrd’s cases could
    reveal grand jury witness identities. Assume that a suspect
    knows his girlfriend witnessed the crime he is suspected of
    committing. Also assume (plausibly) that he can discover
    from friends or family members whether his girlfriend was
    absent from work or school on a particular day and time.
    Once convicted, the suspect wants to know whether his
    girlfriend in fact provided testimony to the grand jury. If the
    government discloses the dates and times of day that the grand
    jury convened, he can compare those dates and times with his
    girlfriend’s corresponding absences. If the grand jury met on
    a day and time that his girlfriend missed school or work, he
    could infer that she could have testified before the grand jury.
    See JA 56–57 (providing similar example). 4
    4
    This is not the only scenario that could involve a risk of disclosing
    the identity of a grand jury witness. The same risk could occur if
    the criminal defendant and the suspected grand jury witness are
    cellmates. Knowing when the grand jury met could provide an easy
    way for him to determine whether his cellmate was likely providing
    testimony. If the grand jury met on a day and at a time that the
    cellmate was absent, the inference is plain: His cellmate could have
    testified. Moreover, cellmates’ close proximity to one another
    enhances the opportunity for (and success of) retaliation, which
    10
    The EOUSA’s position is all the more reasonable because
    it is based on extensive experience. The EOUSA declarant
    was an assistant United States Attorney with more than twenty
    years’ experience handling criminal cases in federal court. 
    Id. at 56.
    She averred that she “went to great lengths” to keep
    grand jury proceedings secret in order to “protect the identity
    of the witnesses.” 
    Id. Secrecy is
    essential because, in her
    experience, “defendants often went to great lengths to discover
    the identity of witnesses in their cases, both before and after
    trial.” 
    Id. at 57.
    We cannot lightly brush aside both the logic
    and experience underlying the EOUSA’s decision to withhold
    the requested information. Cf. McDonnell Douglas Corp. v.
    Dep’t of the Air Force, 
    375 F.3d 1182
    , 1190 (D.C. Cir. 2004)
    (suggesting government can justify disclosure under FOIA
    with “special knowledge based upon its experience”); Taylor v.
    Dep’t of the Army, 
    684 F.2d 99
    , 109 (D.C. Cir. 1982)
    (government affidavits explaining why material was classified
    were entitled to deference because of affiants’ “experience”).
    Granted, simply because an individual misses work or is
    otherwise unaccountably absent does not mean we can be
    certain that he provided testimony to a grand jury. But
    exemption 3 is not limited to circumstances that are certain to
    reveal a witness’s identity. Instead, the exemption is properly
    invoked if “the disclosed material would tend to reveal some
    secret aspect of the grand jury’s investigation, including the
    identities of witnesses.” 
    Hodge, 703 F.3d at 580
    (emphasis
    added; quotation marks omitted). A tendency need only make
    a result more likely. See Tendency, OXFORD ENGLISH
    DICTIONARY (2d ed. 1989) (“leaning,” “inclination” or “bent
    toward some . . . result”). The EOUSA has demonstrated how
    raises an even more compelling security concern than with someone
    who is not confined with the defendant. See JA 56–57.
    11
    disclosing the specific dates and times of day a grand jury met
    to consider a particular “matter” makes it more likely that a
    witness’s identity can be discovered. See supra pp. 9–10; see
    also 
    Lopez, 393 F.3d at 1350
    (“[R]evealing the dates of
    preliminary interviews conducted for the purposes of
    ‘screening’ potential [grand jury] witnesses may in fact tend to
    reveal some secret aspect of the grand jury.” (emphasis added;
    some quotation marks omitted)).
    The EOUSA’s position also draws from the plausibility of
    its explanation for invoking exemption 3. It reasonably
    believes that a criminal suspect or defendant not only wants to
    discover a grand jury witness’s identity but that he may also
    want to retaliate against that witness. See JA 57 (if
    “defendants . . . discover the identity of witnesses,” “that
    person’s safety was in jeopardy”). Federal prosecutors are not
    the only ones who believe that grand jury witnesses confront a
    risk of retaliation; the Congress falls squarely in that camp as
    well. That is why federal law prohibits tampering with or
    retaliating against witnesses. See 18 U.S.C. § 1512 (witness
    tampering unlawful); 
    id. § 1513
    (retaliation against witnesses
    unlawful). These laws are not a solution in search of a
    problem; there are countless cases dealing with successful
    criminal prosecutions for both witness tampering and witness
    retaliation. See, e.g., United States v. Wardell, 
    591 F.3d 1279
    ,
    1283 (10th Cir. 2009) (affirming conviction of “conspiring to
    retaliate against a witness” and “retaliating against a witness”);
    United States v. Wilson, 
    160 F.3d 732
    , 736 (D.C. Cir. 1998)
    (affirming convictions of “conspiracy to kill a witness, killing a
    witness with intent to prevent him from testifying, [and]
    retaliating against a witness” (citations omitted)); United
    States v. Cunningham, 
    54 F.3d 295
    , 297 (7th Cir. 1995)
    (affirming convictions of “retaliating against a federal
    witness”). And grand jury witnesses in particular—despite
    the government’s best efforts to keep their identities
    12
    secret—have not been immune from similar threats. See, e.g.,
    United States v. Gallimore, 
    491 F.3d 871
    , 873 (8th Cir. 2007)
    (affirming defendant’s sentence after he “pled guilty to
    retaliating against a grand jury witness”); United States v.
    Maggitt, 
    784 F.2d 590
    , 594 (5th Cir. 1986) (affirming
    conviction of tampering with and retaliating against witness
    because jury could have found defendant’s “threat was
    intended in retaliation against [the witness] for his earlier
    testimony before the grand jury”).
    The reported cases highlight that the risk of witness
    retaliation is real or, at least, “plausible.” 
    Larson, 565 F.3d at 862
    . The risk of retaliation against grand jury witnesses is one
    reason for maintaining grand jury secrecy. See United States
    v. Proctor & Gamble Co., 
    356 U.S. 677
    , 681–82 (1958)
    (“long-established policy” of grand jury secrecy rests in part on
    “encourag[ing] all witnesses to step forward and testify freely
    without fear of retaliation”). The government plainly has a
    strong interest in witness safety.
    While the consequence of disclosing information that
    tends to reveal the identity of grand jury witnesses is, by itself,
    substantial, that risk alone is not the only reason for protecting
    the times and dates a grand jury considered evidence or
    deliberated in a particular case. Disclosing the days and times
    a grand jury met to consider evidence and hear testimony
    would also reveal the content of grand jury deliberations by
    disclosing how long a particular “matter occurr[ed] before the
    grand jury,” FED. R. CRIM. P. 6(e), how much or how little
    evidence was weighed and which witnesses most occupied the
    grand jury’s time. That information could shed light on the
    nature of the grand jury’s investigative and deliberative
    processes. Because disclosing the day-and-time information
    Murphy sought would tend to reveal the complexity and
    “scope, focus and direction of the grand jury investigations,”
    13
    that information is protected from disclosure by Rule 6(e) even
    if no disclosure of witness identity or risk of retaliation exists.
    See Fund for Constitutional 
    Gov’t, 656 F.2d at 869
    .
    Amicus offers several rejoinders. We find none of them
    persuasive. First, amicus argues that the supplemental
    Brandon Declaration is insufficient because it does not point to
    an actual case in which a witness’s identity was revealed after
    disclosing the dates and times of day a grand jury met. But the
    basis for invoking exemption 3 need only be “logical or
    plausible.” 
    Larson, 565 F.3d at 862
    . A risk of harm is
    plausible even if the anticipated harm has not yet materialized.
    See ACLU v. DOD, 
    628 F.3d 612
    , 619 (D.C. Cir. 2011) (“[A]
    reviewing court must take into account that any affidavit or
    other agency statement of threatened harm . . . will always be
    speculative to some extent, in the sense that it describes a
    potential future harm.” (quotation marks and ellipsis omitted)).
    Likewise, an explanation is no less plausible because it posits
    persuasive hypotheticals rather than real-world examples. Cf.
    Mudge Rose Guthrie Alexander & Ferdon v. ITC, 
    846 F.2d 1527
    , 1532 (D.C. Cir. 1988) (suggesting agency could have
    cured insufficient FOIA affidavit by providing “hypothetical
    examples”).
    Second, amicus contends there is little risk that Murphy
    could use the requested information to identify grand jury
    witnesses because the grand juries convened five to seven
    years ago. But there is no time limit on the secrecy of grand
    jury proceedings. See Fund for Constitutional 
    Gov’t, 656 F.2d at 869
    n.32 (“the chronological remoteness of grand jury
    proceedings bears no relevance to [a] FOIA inquiry” and “[t]he
    general rule [of grand jury secrecy] admits to no exception for
    old grand jury proceedings”). Moreover, we have previously
    decided FOIA cases seeking years-old grand jury information
    and not once intimated that the passage of time made Rule 6
    14
    inapplicable. See 
    Hodge, 703 F.3d at 579
    (2002 FOIA request
    seeking grand jury information related to 1985 conviction);
    
    Lopez, 393 F.3d at 1347
    (1997 FOIA requests seeking grand
    jury information leading to 1990 indictment).
    Amicus further claims that the information which we have
    previously held to be covered by exemption 3 is different from
    the date-and-time information that Murphy wants. Amicus
    states that, notwithstanding that documents that include the
    name of a grand jury witness necessarily disclose his identity,
    the same cannot be said for the dates and times of day a grand
    jury meets. This argument misunderstands what is needed to
    successfully invoke exemption 3. The test is whether “the
    disclosed material would tend to reveal some secret aspect of
    the grand jury’s investigation, including the identities of
    witnesses.” 
    Hodge, 703 F.3d at 580
    (emphasis added).
    Finally, amicus identifies three cases in which the Justice
    Department allegedly disclosed the dates and times of day a
    grand jury convened to hear testimony. We find all three
    inapposite. In one, the Justice Department was ordered to
    disclose “the date the grand jury convened, the date the
    indictment was returned or issued, and the date the grand jury
    was discharged.” Hill v. DOJ, No. 11-cv-00273, ECF No. 29,
    at 8 (D.D.C. Dec. 19, 2011) (magistrate report and
    recommendation). This information revealed nothing more
    than when “the grand jury’s work began and ended.” 
    Id. Murphy has
    this information for the two criminal cases
    identified in his FOIA requests.
    In the second case, the Justice Department declined to
    disclose “the dates the grand jury convened.” Peay v. DOJ,
    No. 04-cv-1859, 
    2007 WL 788871
    , at *3 (D.D.C. Mar. 14,
    2007). The district court denied the government’s summary
    judgment motion because its declaration did not explain “how
    15
    the disclosure of the dates the grand jury convened would tend
    to reveal a ‘secret aspect’ of the grand jury investigation.” 
    Id. In contrast,
    we have here the second Brandon Declaration.
    Amicus also points to North v. DOJ, 
    774 F. Supp. 2d 217
    (D.D.C. 2011), a district court case in which the Justice
    Department released “cover sheets and final pages of
    transcripts of grand jury testimony . . . that indicated the date
    that the testimony was given.” 
    Id. at 220.
    The Justice
    Department had initially withheld the information; it was
    released only after the district court found its FOIA
    declarations wanting.        Compare North v. DOJ, No.
    08-cv-01439, ECF No. 17-1, at 6, ¶ 19 (D.D.C. Dec. 12, 2008)
    (categorically denying “entire [FOIA] request” because “all of
    the materials requested were specifically identified as grand
    jury materials”), with 
    id. ECF No.
    71-1, at 5, ¶ 14 (D.D.C. Apr.
    15, 2010) (releasing documents that “allow plaintiff to see
    when the proceedings took place since the redactions do not
    include the dates”). The Justice Department’s initial response
    in North is consistent with the EOUSA’s position here,
    namely, that the dates and times of day the grand jury meets to
    consider a specific case are protected by exemption 3. In any
    event, North does not bind this court. 5
    5
    Amicus also contends that the district court’s segregability analysis
    was insufficient. We disagree. An agency can withhold records
    that are exempt from disclosure under FOIA but it must produce
    “[a]ny reasonably segregable” portion thereof that does not fit one of
    the statutory exemptions. 5 U.S.C. § 552(b). Here, however, there
    is no segregability problem.           Murphy requested specific
    “information”—i.e., the dates and times of day the grand jury met to
    consider his case and Byrd’s case. JA 25, 31. Once the EOUSA
    declined to disclose the requested information, there was nothing left
    to segregate. Cf. Judicial Watch, Inc. v. DOJ, 
    432 F.3d 366
    , 370
    16
    Finally, we address one remaining minor issue. In his
    informal brief to this Court, Murphy requested an unredacted
    copy of the indictment in Byrd’s case. Murphy admitted in
    district court that the only redacted information in the Byrd
    indictment was the grand jury foreperson’s name and
    signature. This information is plainly protected under
    exemption 3. See 
    Hodge, 703 F.3d at 580
    (exemption 3
    protects information that would “tend to reveal some secret
    aspect of the grand jury’s investigation, including the identities
    of . . . jurors” (quotation marks omitted)). Although the
    EOUSA has not invoked exemption 3 to protect the identity of
    the grand jury foreperson, we can uphold ex mero motu
    non-disclosure of information when ordering disclosure would
    “endanger the safety and privacy of third parties.” August v.
    FBI, 
    328 F.3d 697
    , 701 (D.C. Cir. 2003); see also 
    id. (“The law
    does not require that third parties pay for the Government’s
    mistakes.”).
    For the foregoing reasons, the district court’s judgment is
    affirmed.
    So ordered.
    (D.C. Cir. 2005) (segregability does not apply if “there simply are no
    ‘reasonably segregable’ portions to release after deletion of the
    portions which are exempt.” (ellipsis and some quotation marks
    omitted)).
    In addition, Murphy’s inadequate-search challenge fails
    because the adequacy of the search becomes a moot point if the
    requested information is in fact found but not disclosed. See
    Blanton v. DOJ, 64 F. App’x 787, 788–89 (D.C. Cir. 2003) (per
    curiam) (plaintiff’s challenge to adequacy of search was “moot”
    when agency “found th[e] [requested] documents”).
    

Document Info

Docket Number: 14-5044

Citation Numbers: 416 U.S. App. D.C. 59, 789 F.3d 204, 2015 U.S. App. LEXIS 10074, 2015 WL 3688318

Judges: Henderson, Rogers, Millett

Filed Date: 6/16/2015

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (20)

North v. United States Department of Justice , 774 F. Supp. 2d 217 ( 2011 )

Milner v. Department of the Navy , 131 S. Ct. 1259 ( 2011 )

Judicial Watch, Inc. v. Department of Justice , 432 F.3d 366 ( 2005 )

Mudge Rose Guthrie Alexander & Ferdon v. U.S. International ... , 846 F.2d 1527 ( 1988 )

United States v. Shirley Maggitt and Tommy Maggitt , 784 F.2d 590 ( 1986 )

Fund for Constitutional Government v. National Archives and ... , 656 F.2d 856 ( 1981 )

United States v. Donald W. Gallimore , 491 F.3d 871 ( 2007 )

Lopez v. Department of Justice , 393 F.3d 1345 ( 2005 )

Jack H. Taylor, Jr. v. Department of the Army , 684 F.2d 99 ( 1982 )

Harris, Carla v. Gonzales, Alberto , 488 F.3d 442 ( 2007 )

United States v. Todd Cunningham, Richard G. Hanus, Timothy ... , 54 F.3d 295 ( 1995 )

August v. Federal Bureau of Investigation , 328 F.3d 697 ( 2003 )

United States Department of Justice v. Julian , 108 S. Ct. 1606 ( 1988 )

United States Department of Justice v. Reporters Committee ... , 109 S. Ct. 1468 ( 1989 )

United States v. Wilson, Ralph T. , 160 F.3d 732 ( 1998 )

McDonnell Douglas Corp. v. United States Department of the ... , 375 F.3d 1182 ( 2004 )

In Re SEALED CASE , 199 F.3d 522 ( 2000 )

American Civil Liberties Union v. United States Department ... , 628 F.3d 612 ( 2011 )

Larson v. Department of State , 565 F.3d 857 ( 2009 )

John Doe Agency v. John Doe Corp. , 110 S. Ct. 471 ( 1989 )

View All Authorities »