Liounis v. Krebs ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PETER LIOUNIS,
Plaintiff,
v.
Civil Action No. 17-1621(CKK)
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendant
Memorandum Opinion
(November 7, 2018)
This lawsuit arises from a Freedom of Information Act (“FOIA”) request that pro se
Plaintiff Peter Liounis made to Defendant United States Department of Justice. Plaintiff
requested documents related to the grand jury that issued an indictment against him, initiating
criminal proceedings which eventually resulted in his conviction and current incarceration. The
Executive Office for United States Attorneys (“EOUSA”), the department in possession of the
requested records, has denied Plaintiff’s FOIA request in full. The EOUSA claims that the
requested documents are exempt under FOIA Exemption 3 in conjunction with Federal Rule of
Criminal Procedure 6(e), on the grounds that grand jury material is exempt from mandatory
release, and FOIA Exemption 5, on the grounds that the documents are attorney work product.
Plaintiff filed this suit arguing that the EOUSA wrongfully denied his FOIA request.
Upon consideration of the pleadings,1 the relevant legal authorities, and the record as it
currently stands, the Court DENIES Plaintiff’s motion for summary judgment and GRANTS
1
The Court’s consideration has focused on the following documents:
• Def.’s Renewed Mot. for Summary Judgment, ECF No. 56 (“Def.’s Renewed Mot.”);
• Def.’s Mot. for Summary Judgment, ECF No. 13 (“Def.’s Mot.”);
1
Defendant’s motion for summary judgment. The Court concludes that Defendant conducted a
reasonable search under FOIA and that all responsive documents have either already been
released to Plaintiff or are exempt under FOIA Exemptions 3 and 5.
I. BACKGROUND
In his FOIA request, Plaintiff seeks to acquire documents related to the grand jury in the
Eastern District of New York which issued an indictment resulting in a criminal trial at which
Plaintiff was found guilty and later sentenced to 292-months imprisonment. Plaintiff’s FOIA
request is the latest in a long line of attempts to gain access to these grand jury documents. Prior
to this FOIA request, during his criminal proceeding, Plaintiff submitted numerous in limine, pro
se motions to dismiss the indictment due to alleged improprieties in the grand jury proceeding.
Declaration of Jonathan P. Lax, 56-5, ¶ 7. Following his conviction, Plaintiff continued his
attempts to gain access to his grand jury materials, arguing in more pro se motions that his
indictment had been invalid due to impropriety in the grand jury. Id. ¶ 8. In addition to initiating
this FOIA request, Plaintiff has continued his attempts to gain access to his grand jury materials
through his criminal proceeding by filing a petition seeking a writ of habeas corpus and moving
for discovery with respect to the indictment and grant jury proceedings. Id. at ¶ 10. In both his
criminal proceeding and in his FOIA request, Plaintiff seeks these documents based on his belief
• Pl.’s Cross Mot. for Summary Judgment in Opp’n to Def.’s Renewed Mot. for Summary
Judgment, ECF No. 68 (“Pl.’s Mot”);
• Def.’s Opp’n to Pl.’s Cross Mot. for Summary Judgment and Def.’s Reply in Support of
Def.’s Renewed Mot. for Summary Judgment, ECF No. 72 (“Def.’s Reply”);
• Pl.’s Response in Opp’n to Def.’s Response to Pl.’s Cross Mot. for Summary Judgment
and Pl.’s Reply in Support of Pl.’s Cross Mot. for Summary Judgment, ECF No. 77
(“Pl.’s Reply”).
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
2
that the records will show that government misconduct infected the grand jury proceeding,
invalidating his indictment and his subsequent criminal conviction. First Am. Compl., ECF No.
30-1, 17.
The EOUSA first received Plaintiff’s FOIA request seeking his grand jury materials on
January 19, 0217. Declaration of Vinay J. Jolly, ECF No. 13-1, Ex. A, 7-8. By letter dated
February 23, 2017, the EOUSA denied Plaintiff’s request for impermissibly seeking grand jury
materials. Id. at Ex. B, 15. On that same day, the EOUSA received a second, duplicate FOIA
request from Plaintiff seeking the same grand jury materials. Id. at Ex. C, 17-18. And again, by
letter dated March 7, 2017, the EOUSA denied Plaintiff’s second, duplicate FOIA request for
impermissibly seeking grand jury materials. Id. at Ex. D, 21-22. On March 21, 2017, Plaintiff
filed an administrative appeal for both denials. Id. at Ex. E, 23-34; Id. at Ex. F, 35-46. On appeal,
the denial of Plaintiff’s FOIA requests was affirmed as Plaintiff’s requests impermissibly sought
records which “may reveal some secret aspect of the grand jury’s investigation.” Id. at Ex. J, 52;
Id. at Ex. I, 49.
Defendant now comes to this Court asking that the Court order the EOUSA to release the
requested grand jury materials under FOIA. Presently before the Court are Defendant’s [56]
Motion for Summary Judgment and Plaintiff’s [69] Cross-Motion for Summary Judgment. But,
these are not the first summary judgment cross-motions that the Court has considered in this
case. In its June 11, 2018 Order, the Court denied without prejudice both parties’ prior cross-
motions for summary judgment. The Court concluded that Defendant had categorically denied
Plaintiff’s FOIA requests in their entirety, providing only a brief, conclusory explanation for
doing so. Without a more detailed proffer, the Court could not be assured that all portions of all
the requested documents were exempt from FOIA. Order, ECF No. 45, 1-4. As ordered by the
3
Court, in its Renewed Motion for Summary Judgment, Defendant has attached a Vaughn index
listing the documents being withheld and briefly explaining why each document is exempt from
disclosure. Considering this Vaughn index, Defendant’s attached declarations, and the parties’
arguments, the Court can now affirm Defendant’s determination that the requested documents
are exempt from disclosure under FOIA.
II. LEGAL STANDARD
Congress enacted FOIA to “pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976)
(internal quotation marks omitted). Congress remained sensitive to the need to achieve balance
between these objectives and the potential that “legitimate governmental and private interests
could be harmed by release of certain types of information.” FBI v. Abramson, 456 U.S. 615, 621
(1982). To that end, FOIA “requires federal agencies to make Government records available to
the public, subject to nine exemptions.” Milner v. Dep't of Navy, 562 U.S. 562, 562 (2011).
Ultimately, “disclosure, not secrecy, is the dominant objective of the Act.” Rose, 425 U.S. at
361. For this reason, the “exemptions are explicitly made exclusive, and must be narrowly
construed.” Milner, 562 U.S. at 565 (internal quotation marks omitted).
When presented with a motion for summary judgment in this context, the district court
must conduct a “de novo” review of the record, which requires the court to “ascertain whether
the agency has sustained its burden of demonstrating the documents requested are ... exempt
from disclosure under the FOIA.” Multi Ag Media LLC v. U.S. Dep't of Agriculture, 515 F.3d
1224, 1227 (D.C. Cir. 2008) (internal quotation marks omitted). The burden is on the agency to
justify its response to the plaintiff's request. 5 U.S.C. § 552(a)(4)(B). “An agency may sustain its
burden by means of affidavits, but only if they contain reasonable specificity of detail rather than
4
merely conclusory statements, and if they are not called into question by contradictory evidence
in the record or by evidence of agency bad faith.” Multi Ag Media, 515 F.3d at 1227 (internal
quotation marks omitted). “If an agency's affidavit describes the justifications for withholding
the information with specific detail, demonstrates that the information withheld logically falls
within the claimed exemption, and is not contradicted by contrary evidence in the record or by
evidence of the agency's bad faith, then summary judgment is warranted on the basis of the
affidavit alone.” Am. Civil Liberties Union v. U.S. Dep't of Defense, 628 F.3d 612, 619 (D.C. Cir.
2011) (internal quotation marks omitted). “Uncontradicted, plausible affidavits showing
reasonable specificity and a logical relation to the exemption are likely to prevail.” Ancient Coin
Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 509 (D.C. Cir. 2011). Summary judgment
is proper when the pleadings, the discovery materials on file, and any affidavits or declarations
“show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III. DISCUSSION
An agency must release all non-exempt documents responsive to a plaintiff’s FOIA
request following a search that is “reasonably calculated to uncover all relevant documents.”
Ancient Coin Collectors, 641 F.3d at 514 (internal quotation marks omitted). Here, the Court
concludes that the EOUSA conducted an adequate search for records responsive to Plaintiff’s
FOIA request. The Court further concludes that any responsive records were either made
available to Plaintiff or were properly withheld under FOIA Exemptions 3 and 5.
First, the Court will assess the adequacy of Defendant’s search. Plaintiff contends that
Defendant’s search was not adequate because Defendant was unable to locate the requested
5
voting and attendance records of the grand jurors. Pl.’s Mot., ECF No. 68, 6. Despite Plaintiff’s
argument, the Court finds that Defendant’s search was adequate.
“The Court applies a reasonableness test to determine the adequacy of search
methodology ... consistent with the congressional intent tilting in favor of disclosure.” Campbell
v. U.S. Dep't of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998) (internal quotation marks omitted). An
agency “fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its
search was reasonably calculated to uncover all relevant documents.” Ancient Coin Collectors
Guild, 641 F.3d at 514 (internal quotation marks omitted). The agency may submit affidavits or
declarations to explain the method and scope of its search. See Perry v. Block, 684 F.2d 121, 126
(D.C. Cir. 1982). And, such affidavits or declarations are “accorded a presumption of good faith,
which cannot be rebutted by purely speculative claims about the existence and discoverability of
other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal
quotation marks omitted). However, if the record “leaves substantial doubt as to the sufficiency
of the search, summary judgment for the agency is not proper.” Truitt v. Dep't of State, 897 F.2d
540, 542 (D.C. Cir. 1990).
Here, Defendant submitted a declaration from Jonathan P. Lax concerning the adequacy
of the search for records responsive to Plaintiff’s FOIA request. Mr. Lax is an Assistant United
States Attorney in the United States Attorney’s Office for the Eastern District of New York
(“USAO-EDNY”). Declaration of Jonathan P. Lax, ECF. No. 56-6, ¶ 2. As Mr. Lax was
involved in Plaintiff’s post-conviction proceedings, Mr. Lax is familiar with Plaintiff’s multiple
failed attempts to seek judicial relief on the grounds of alleged grand jury impropriety. Id. at ¶ 3.
Following this Court’s June 11, 2018 Order, it was determined that the USAO-EDNY,
which had handled the criminal case against Plaintiff, maintained all original records relevant to
6
the matter. Id. at ¶ 4. As the USAO-EDNY was in possession of any and all responsive records,
Mr. Lax reviewed the USAO-EDNY’s file from Plaintiff’s criminal proceeding. This file
included the grand jury records pertaining Plaintiff’s prosecution. Id. at ¶ 12. Specifically, Mr.
Lax searched nine boxes of physical files and voluminous electronic case files, all maintained by
the USAO-EDNY and relating to Plaintiff’s case. Mr. Lax also reviewed the public docket
entries from Plaintiff’s criminal case. Id.
In searching these physical and electronic files, Mr. Lax found the following responsive
documents: an indictment returned by a grand jury against Plaintiff on May 17, 2012 and an
accompanying information sheet; calendar minutes of the May 17, 2012 grand jury presentment;
a transcript of the May 17, 2012 grand jury proceeding and accompanying grand jury exhibits;
multiple draft indictments; a draft information; and notes prepared by one or more former
Assistant United States Attorneys. Id. at ¶ 13. However, Mr. Lax did not locate grand jury voting
records or records of the names and attendance of grand jurors. Id.
Plaintiff argues that Defendant’s search was inadequate because it failed to locate the
grand jury voting and attendance records. Pl.’s Mot., ECF No. 68, 6. But, in considering the
adequacy of a Defendant’s search, the relevant issue is not whether there might exist any other
documents potentially responsive to the request, “‘but rather whether the government’s search
for responsive documents was adequate.’” Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344,
1351 (D.C. Cir. 1983) (quoting Perry, 684 F.2d at 128). “The fact that a particular document was
not found does not demonstrate the inadequacy of a search.” Boyd v. Criminal Div. of U.S. Dep't
of Justice, 475 F.3d 381, 391 (D.C. Cir. 2007) (internal quotation marks omitted).
Here, the Mr. Lax indicates “‘which files were searched,’ by whom those files were
searched, and ... a ‘systematic approach to document location.’” Toensing v. U.S. Dep't of
7
Justice, 890 F. Supp. 2d 121, 142 (D.D.C. 2012) (quoting Weisberg, 627 F.2d at 371. Mr. Lax’s
declaration is accorded a presumption of good faith, which plaintiff can overcome only by
supplying evidence of bad faith. See Elec. Privacy Info. Ctr. v. Dep't of Homeland Sec., 384 F.
Supp. 2d 100, 107 (D.D.C. 2005). Plaintiff offers only “purely speculative claims about the
existence and discoverability of other documents,” and he presents no evidence of bad faith.
SafeCard Servs., 926 F.2d at 1200 (internal quotation marks omitted). Accordingly, the Court
concludes that Defendant’s search was adequate. Moreover, even if this information had been
found in Defendant’s search, any records concerning the grand jury voting and attendance
records would most likely have been exempt from disclosure. See Hodge v. F.B.I., 703 F.3d 575,
580 (D.C. Cir. 2013) (explaining that information which tends to reveal the identities of grand
jurors may be withheld); see also Flores v. Exec. Office for the U.S. Attorneys Freedom of
Info./Privacy Act Unit, 121 F. Supp. 2d 14, 15 (D.D.C. 2000) (affirming the withholding of
“ballots showing the grand jurors’ votes on whether to return an indictment”).
Because Defendant’s search was adequate, the Court next considers whether or not
Defendant rightfully withheld the responsive documents under the exemptions to FOIA. FOIA
Exemption 3 permits an agency to withhold information “specifically exempted from disclosure
by statute,” if the relevant statute:
(A)
(i) requires that the matters be withheld from the public in such a manner
as to leave no discretion on the issue; or
(ii) establishes particular criteria for withholding or refers to particular
types of matters to be withheld; and
(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009,
specifically cites to this paragraph.
8
5 U.S.C. § 552(b)(3). Federal Rule of Criminal Procedure 6(e) is considered a “statute” for
purposes of Exemption 3. See Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv.,
656 F.2d 856, 867-68 (D.C. Cir. 1981) (“Rule 6(e) is a relevant statute within the meaning of
FOIA Exemption 3.”). With certain exceptions, Rule 6(e) prohibits the disclosure of “matter[s]
occurring before the grand jury.” Fed. R. Crim. P. 6(e).
FOIA Exemption 3 in conjunction with Rule 6(e), which prohibits the disclosure of
matters occurring before a grand jury, would seem to foreclose Plaintiff’s request for his grand
jury materials. But, the prohibition is not as all-encompassing as it at first appears. In a recent
opinion, Judge Reggie B. Walton aptly summarized the law regarding the types of matters
covered by Rule 6(e):
Although Rule 6(e) prohibits disclosure of “matter[s] occurring
before [a] grand jury,” it should not be read in a manner that creates
“a veil of secrecy . . . over all matters occurring in the world that
happen to be investigated by a grand jury.” Senate of P.R. ex rel.
Judiciary Comm. v. U.S. Dep’t of Justice, 823 F.2d 574, 582 (D.C.
Cir. 1987) (quoting SEC v. Dresser Indus., Inc., 628 F.2d 1368,
1382 (D.C. Cir. 1980) (en banc)). “There is no per se rule against
disclosure of any and all information which has reached
the grand jury chambers . . . .” Senate of P.R., 823 F.2d at 582.
Rather, “the touchstone is whether disclosure would ‘tend to reveal
some secret aspect of the grand jury’s investigation,’” such as “the
identities of witnesses or jurors, the substance of testimony, the
strategy or direction of the investigation, the deliberations or
questions of jurors and the like.” Id. And, there must be a “nexus
between disclosure and revelation of a protected aspect of
the grand jury’s investigation.” Lopez v. Dep’t of Justice, 393 F.3d
1345, 1350 (D.C. Cir. 2005) (quoting Senate of P.R., 823 F.2d at
584).
Judicial Watch, Inc. v. Nat’l Archives & Records Admin., 214 F. Supp. 3d 43, 53 (D.D.C.
2016), aff’d, 876 F.3d 346 (D.C. Cir. 2017). Importantly, it is “incumbent upon the agency . . .
to make the requisite showing” that requested documents will reveal the inner workings of the
9
grand jury. Senate of P.R., 823 F.2d at 583. The agency must supply the Court with sufficient
information so that it can “intelligently make that judgment.” Id. at 584.
According to Defendant’s Vaughn index, Defendant’s search located twenty documents
responsive to Plaintiff’s FOIA request, all of which Defendant claims have already been
disclosed to Plaintiff or are exempt from FOIA. As an initial matter, Plaintiff argues that
Defendant’s Vaughn index is insufficiently detailed. While Defendant’s Vaughn index is
somewhat sparse, a Vaughn index need only “indicate[] in some descriptive way which
documents the agency is withholding and which FOIA exemptions it believes apply.” Am. Civil
Liberties Union v. Cent. Intelligence Agency, 710 F.3d 422, 432 (D.C. Cir. 2013). A Vaughn
index is sufficient if it “allow[s] a court to determine … whether the specific claimed exemptions
properly appl[y].” Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994) (alterations in original)
(internal quotation marks omitted).
Defendant’s Vaughn index contains the nature of the document, the number of pages of
the document, the exemptions that Defendant claims apply, and a brief description of why those
exemptions apply. See generally Vaughn index, ECF No. 56-6. Additionally, Defendant’s
Vaughn index is supplemented by Mr. Lax’s declaration which further explains why the
responsive documents are exempt. See Declaration of Jonathan P. Lax, ECF. No. 56-6, ¶¶ 13-14.
Where, for some responsive documents, Defendant fails to sufficiently show that one exemption
applies, Defendant cures any error by providing a sufficiently detailed explanation for why that
document was properly withheld under a different exemption to FOIA. See Infra p. 14.
Accordingly, the Court concludes that Defendant’s Vaughn index, as a whole, is sufficient.
Because Defendant’s declaration and Vaughn index provide sufficiently detailed information for
the Court to determine whether the documents were properly withheld, Plaintiff’s request for in
10
camera review is unnecessary. See Lam Lek Chong v. U.S. Drug Enf’t Admin., 929 F.2d 729, 735
(D.C. Cir. 1991) (upholding district court’s denial of in camera review where the “District court
ruled the DEA index and accompanying affidavits sufficient”).
Turning to the documents identified in Defendant’s Vaughn index, these responsive
documents can be divided into three broad categories. The first category concerns responsive
documents that were previously produced or made available to Plaintiff. The second category is
the transcript and exhibits from the grand jury presentation. The third category includes draft
documents and notes relating to the grand jury proceeding. The Court will address each category
in turn.
The first category of documents in Defendant’s Vaughn index includes documents which
are responsive to Plaintiff’s FOIA request and have already been made available to Plaintiff.
These documents include: the indictment returned by the grand jury; the information sheet for
the indictment returned by the grand jury; the calendar minutes for the grand jury presentment;
and the redacted first and last pages of the transcript for the grand jury presentation. Vaughn
index, ECF No. 56-6, 1-2. These documents have been previously produced or made available to
Plaintiff in connection with his criminal case. Id. Plaintiff makes no argument that these
documents are being wrongfully withheld, as they have previously been provided to him.
The second category in Defendant’s Vaughn index is a document containing the
transcript of the grand jury presentation and the exhibits used therein. Id. at 2. Defendant
withheld this document because what was said and what was presented at the grand jury
proceeding is exempt from FOIA as “pertaining to [the] secrecy and scope of grand jury
proceedings.” Id. The Court finds that these documents were properly withheld under Exemption
3.
11
A transcript of the grand jury presentation is the archetypal document that would “tend to
reveal some secret aspect of the grand jury’s investigation.” Lopez v. Dep’t of Justice, 393 F.3d
1345, 1349 (D.C. Cir. 2005) (internal quotation marks omitted). By its nature, the transcript of
the grand jury presentation could reveal “such matters as the identities … of witnesses or jurors,
the substance of testimony, [and] the … questions of jurors.” Stolt-Nielsen Transp. Grp. Ltd. v.
U.S., 534 F.3d 728, 732 (D.C. Cir. 2008); see also Sanders v. U.S. Dep’t of Justice, 2011 WL
1769099, at *1 (D.C. Cir. April 21, 2011) (per curiam) (finding that the district court “correctly
held that the government properly withheld the grand jury transcript under Exemption 3”). The
grand jury transcript is “precisely the type of information that [Exemption 3] is designed to
protect.” Boyd v. Exec. Office for U.S. Attorneys, 87 F. Supp. 3d 58, 83 (D.D.C. 2015).
Likewise, the exhibits presented to the grand jury are exempt from FOIA under
Exemption 3 because they would reveal “the strategy or direction of the investigation.” Sec. and
Exch. Comm’n v. Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980); see also Fund for
Constitutional Gov’t v. Nat’l Archives and Records Servs., 656 F.2d 856, 869-70 (D.C. Cir.
1981) (explaining that “it is apparent” that “documents considered by the grand jury” fall within
the “broad reach” of Exemption 3). Considering whether Exemption 3 applies to the grand jury
exhibits, the Court notes that this case is not like Senate of the Com. Of Puerto Rico on Behalf of
Judiciary v. U.S. Department of Justice, 823 F.2d 574 (D.C. Cir. 1987). In that case, the court
determined that the “mere fact that [the plaintiff’s] request ‘included’ grand jury exhibits is not
dispositive of the [defendant’s] Rule 6(e) claim.” Senate of P.R., 823 F.2d at 583. The court
explained that, because the plaintiff had requested “all evidence” pertaining to the investigation,
there was nothing to suggest that anyone “would have been able to determine which documents
had been submitted to the grand jury.” Id. (emphasis in original). Here, Plaintiff requested only
12
documents relating to his grand jury proceeding. Accordingly, it would be obvious that any
material which was released had been presented to the grand jury. Knowing the content of
exhibits presented to the grand jury would reveal secret aspects of the direction and scope of the
investigation.2
Despite the applicability of Exemption 3, the Court still must make a separate finding as
to whether any portion of the document withheld in its entirety could have been segregated and
released. Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1027-28 (D.C.
Cir. 1999). “[E]ven if the agency establishes an exemption, it must nonetheless disclose all
reasonably segregable, nonexempt portions of the requested record[s].” Roth v. U.S. Dep’t of
Justice, 642 F.3d 1161, 1117 (D.C. Cir. 2011) (internal quotation marks omitted). According to
Defendant’s Vaughn index, any “reasonably segregable information contained in this document
was previously produced or made available to” Plaintiff. Vaughn index, ECF No. 56-6, 2. Here,
Defendant is referring to the redacted first and last pages of the grand jury transcript which were
produced or made available to Plaintiff in connection with his criminal proceeding. Id. The Court
concludes that any other non-exempt information contained in the document is non-segregable.
See Dipietro v. Exec. Office for U.S. Attorneys, 357 F. Supp. 2d 177, 183 (D.D.C. 2004)
(approving the withholding of grand jury transcripts in their entirety); see also Church of
Scientology Intern. v. U.S. Dep't of Justice, 30 F.3d 224, 235 (1st Cir.1994) (“documents
2
As grounds for withholding the document, Defendant also cites FOIA Exemptions 5, which
protects attorney work product, and 7(C), which protects personal information in law
enforcement records. But, because the Court concludes that the document was rightfully
withheld under Exemption 3, the Court does not need to determine the applicability of other
exemptions. See Simon v. Dep’t of Justice, 980 F.2d 782, 784-85 (D.C. Cir. 1992) (Having
already found the documents exempt under FOIA Exemption 7(D), “we need not address
whether Exemption 7(C) of the FOIA … would independently justify the FBI in withholding the
requested document.”).
13
identified as grand jury exhibits, and … [which are] otherwise directly associated with the grand
jury process, … ordinarily may be withheld simply on the basis of their status”).
The Vaughn index states that Defendant reviewed the document and released all
segregable information. Vaughn index, ECF No. 56-6, 2. And, Defendant submitted a declaration
from Vinay J. Jolly, an attorney-advisor with the EOUSA, stating that “none of the withheld
records can be segregated for release without risking disclosure of exempt and/or privileged
information.” Declaration of Vinay J. Jolly, ECF No. 13-1, ¶ 17. Accordingly, the Court is
satisfied that no non-exempt information could be segregated from this exempt document. See
Loving v. Dep’t of Defense, 550 F.3d 32, 41 (D.C. Cir. 2008) (affirming a district court’s
segregability determination where the district court “relied on the very factors that we have
previously deemed sufficient for this determination, i.e., the description of the document set forth
in the Vaughn index and the agency’s declaration that it released all segregable material”).
Finally, the Court considers the third category of withheld documents: thirteen draft
indictments, a draft grand jury information sheet, and undated notes on the indictment from an
Assistant United States Attorney. Defendant asserts that these documents should be withheld
under FOIA Exemption 3 as they “pertain to [the] secrecy and scope of grand jury proceedings.”
Vaughn index, ECF No. 56-6., 3-10. That could be true. But neither the Vaughn index nor Mr.
Lax’s declaration provide the Court with sufficient details regarding the connection between
those documents and a “secret aspect” of the grand jury investigation. Senate of P.R., 823 F.2d at
582; see Judicial Watch, Inc. v. Nat’l Archives and Records Admin., 214 F. Supp. 3d 43, 53-54
(D.D.C. 2016) (relying on declarations to prove that the withheld drafts of the indictment
“contain precisely the information that Rule 6(e) is intended to protect”). Instead, both the
Vaughn index and Mr. Lax’s declaration rest on conclusory statements which prevent the Court
14
from assessing whether or not Exemption 3 is applicable. In light of the lack of detail, the Court
will not assess whether or not these documents were properly withheld under Exemption 3.
Instead, the Court will look to Exemption 5, which Defendant also used to justify the
withholding of these documents in its Vaughn index.3 See Borda v. U.S. Dep’t of Justice,
Criminal Div., 306 F. Supp. 3d 306, 318-320 (D.D.C. 2018) (relying on Exemption 5 to withhold
draft documents relating to the grand jury because “the declaration offers few details regarding
the connection of most of those records to the grand jury”).
Exemption 5 to FOIA protects “inter-agency or intra-agency memorandums or letters
which would not be available by law to a party other than an agency in litigation with the
agency.” 5 U.S.C. § 552(b)(5). Exemption 5 contains two main privileges. As is relevant here,
the attorney work-product privilege protects material that “can fairly be said to have been
prepared or obtained because of the prospect of litigation.” In re Sealed Case, 146 F.3d 881, 884
(D.C. Cir. 1998) (internal quotation marks omitted). Documents may be withheld under FOIA if
they are “prepared by government lawyers in connection with active investigations of potential
wrongdoing,” and there is “a specific claim supported by concrete facts which would likely lead
to litigation in mind.” Id. at 885, 887 (internal quotation marks omitted).
The Court concludes that Exemption 5 covers the draft indictments, the draft information,
and the handwritten notes on the information as each of these documents was created during or
in preparation for the criminal prosecution of Plaintiff. The draft indictments contain “analysis
3
Defendant also cites Exemption 7(C), which provides protection for personal information in
law enforcement records, as a reason to withhold these documents. But, because the Court
concludes that the documents were rightfully withheld under Exemption 5, the Court does not
need to determine the applicability of Exemption 7(C). See Simon v. Dep’t of Justice, 980 F.2d
782, 784-85 (D.C. Cir. 1992) (Having already found the documents exempt under FOIA
Exemption 7(D), “we need not address whether Exemption 7(C) of the FOIA … would
independently justify the FBI in withholding the requested document.”).
15
and evaluation of potential legal claims, theories and strategy” that the OAUSA-EDNY was
considering in preparing for Plaintiff’s grand jury proceeding. Vaughn index, ECF No. 56-6., 3-
9; see Miller v. U.S. Dep’t of Justice, 562 F. Supp. 2d 82, 114 (D.D.C. 2008) (approving the
withholding of a draft grand jury indictment under Exemption 5 as the document reflected trial
preparation and trial strategy). The draft information is properly withheld under Exemption 5 for
similar reasons. Vaughn index, ECF No. 56-6., 9. And, the Assistant United States Attorney’s
notes on the indictment are also protected, as the handwritten notes on Plaintiff’s grand jury
indictment concern “the mental impressions, conclusions, [and] opinions” of a prosecutor
preparing for criminal litigation. Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C. Cir. 1997)
(internal quotation marks omitted); see also Clark v. Exec. Office of U.S. Attorneys, 601 F. Supp.
2d 170, 172 (D.D.C. 2009) (withholding handwritten notes under Exemption 5 as they “were
prepared in anticipation of litigation and consist entirely of work product”).
Because these documents were properly withheld under Exemption 5, the Court does not
need to conduct a segregability analysis. Judicial Watch, Inc. v. U.S. Dep't of Justice, 432 F.3d
366, 371 (D.C. Cir. 2005) (explaining that “[i]f a document is fully protected as work product,
then segregability is not required”). While it is possible that the draft documents and notes may
contain factual or other background information not related the attorney’s analysis and
evaluation, “[t]he circuit's case law is clear that the work-product doctrine simply does not
distinguish between factual and deliberative material.” Id. (internal quotation marks omitted).
In addition to FOIA, Defendant also alleges that he has brought claims under the Privacy
Act. 5 U.S.C. § 552a; see Pl.’s Mot., ECF No. 68, 12 (“I, in my lawsuit in this Court, sought to
compel the production of the following … documents under FOIA and the Privacy Act.”). But,
Plaintiff’s briefing focuses exclusively on FOIA and contains no argument as to why the Privacy
16
Act would entitle him to the release of the requested documents. Nevertheless, the Court will
briefly address why the Privacy Act does not entitle Plaintiff to release of the requested
documents.
The Privacy Act “safeguards the public from unwarranted collection, maintenance, use
and dissemination of personal information contained in agency records ... by allowing an
individual to participate in ensuring that his records are accurate and properly used, and by
imposing responsibilities on federal agencies to maintain their records accurately.” Bartel v.
FAA, 725 F.2d 1403, 1407 (D.C. Cir. 1984). Under the Privacy Act, records are exempted from
disclosure when they are “maintained by an agency or component thereof which performs as its
principal function any activity pertaining to the enforcement of criminal laws, including police
efforts to prevent, control, or reduce crime or to apprehend criminals.” 5 U.S.C. § 552a(j)(2). By
regulation, criminal case files maintained by the United States Attorney’s Office are exempted
from access under the Privacy Act. 28 C.F.R. § 16.81(a). The United States Attorney’s Office for
the Eastern District of New York maintains Plaintiff’s criminal file, which contains his requested
grand jury records. Declaration of Johnathan P. Lax, ECF No. 56-5, ¶ 4. Because criminal case
files are exempted from access under the Privacy Act, Plaintiff’s grand jury records, which are
located in his criminal case file, are exempted from access. Neither the Privacy Act nor FOIA
provide Plaintiff with a right to the disclosure of his grand jury materials.
IV. CONCLUSION
For the reasons stated above, the Court concludes that the grand jury materials requested
by Plaintiff were rightfully withheld under Exemptions 3 and 5 to FOIA. As such, the Court
DENIES Plaintiff’s motion for summary judgment and GRANTS Defendant’s motion for
summary judgment. A separate order accompanies this Memorandum Opinion.
17
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
18