North v. United States Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JEFFREY NORTH,
Plaintiff,
v. Civil Action No. 08–1439 (CKK)
UNITED STATES DEPARTMENT OF
JUSTICE, et al.,
Defendants.
MEMORANDUM OPINION
(March 31, 2011)
This is a Freedom of Information Act (“FOIA”) case brought by Plaintiff Jeffrey North
against several agencies within the United States Department of Justice that denied his requests
for records relating to certain grand jury proceedings and a witness who testified against him at
his criminal trial. On September 30, 2009, the Court granted summary judgment to Defendants
with respect to all of Plaintiff’s claims except for the claim asserted in Count III of the Amended
Complaint. See North v. U.S. Dep’t of Justice, 658 F. Supp. 2d 163 (D.D.C. 2009). In Count III,
Plaintiff claims that Defendant Executive Office for United States Attorneys (“EOUSA”)
improperly withheld records in response to Paintiff’s FOIA request for documents relating to the
grand jury that indicted him. Following the Court’s denial of its motion for summary judgment
as to Count III, EOUSA conducted a new search for records responsive to Plaintiff’s FOIA
request and produced some additional records to Plaintiff with certain information withheld
under one or more FOIA exemptions. Presently pending before the Court are EOUSA’s [71]
Renewed Motion for Summary Judgment and Plaintiff’s [93] Consolidated Motion for Summary
Judgment and Opposition to Defendant’s Motion for Summary Judgment, which have now been
fully briefed and are ripe for adjudication. After a thorough review of the parties’ submissions
and attachments thereto and applicable case law and statutory authority, the Court shall grant
EOUSA’s renewed motion for summary judgment as to Count III and deny Plaintiff’s motion for
summary judgment.
I. BACKGROUND
Plaintiff Jeffrey North (“North”) was tried and convicted in 2000 for several drug- and
gun-related offenses. See United States v. North, No. 1:98-cr-10176-GAO (D. Mass. Mar. 15,
2000). On June 8, 2006, North submitted a FOIA request to EOUSA requesting certain
information pertaining to the grand jury in his criminal case. See Pl.’s Ex. A (June 8, 2006 FOIA
Request).1 Specifically, North asked for: (1) “any and all documents which prove/indicate when
the grand jury was convened/assembled or at what point did the term of service of the grand jury
begin”; (2) “any and all documents which prove/indicate whether the grand jury . . . was
convened/assembled pursuant to either Fed. R. Crim. P. 6 or 18 U.S.C. § 3331”; and (3) “any and
all documents which pertain to any extensions of time for the grand jury.” In Count III of his
Amended Complaint, North claims that EOUSA failed to comply its obligations under FOIA to
provide these records. North’s FOIA request also asked EOUSA to “provide the date of each
grand jury session for the original indictment” and “for the superseding indictment” in his
criminal case. See id.1
Plaintiff’s FOIA request also sought a copy of a grand jury subpoena that had been
issued to him in a different case. Plaintiff addressed this request in Count IV of his Amended
Complaint, and the Court previously granted summary judgment in favor of EOUSA on this
claim.
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EOUSA previously conducted searches to identify records responsive to North’s FOIA
request. However, following the Court’s denial of EOUSA’s initial motion for summary
judgment as to Count III, EOUSA conducted a new search for records responsive to North’s
request. Suppl. Decl. of David Luczynski ¶ 4. The new search was conducted by Christopher F.
Bator (“Bator”), an Assistant United States Attorney in the U.S. Attorney’s Office for the District
of Massachusetts. Id. Bator was one of the prosecutors who represented the government in
North’s criminal case. Aff. of Christopher F. Bator (“Bator Aff.”) ¶ 3. EOUSA provided Bator
with all of North’s FOIA requests. Suppl. Decl. of David Luczynski ¶ 5.
To attempt to find records responsive to North’s FOIA request, Bator obtained and
searched all files pertaining to North, including district court and appellate case files, that were in
the possession or control of personnel in the U.S. Attorney’s Office who worked on North’s
criminal case. See Bator Aff. ¶ 5. Bator also obtained grand jury files maintained by Maryellen
Barrett, the Grand Jury Coordinator for the U.S. Attorney’s Office for the District of
Massachusetts. Id. On March 8, 9, and 31, 2010, Bator located, obtained, and searched nine file
boxes and one file folder containing records pertaining to North. Id. On March 12, 2010, Bator
was present while Maryellen Barrett searched the files she maintains as Grand Jury Coordinator.
Id. During the searches, Bator located fifteen documents that appeared to be responsive to
North’s requests. Id. These documents were cover sheets and final pages of transcripts of grand
jury testimony in North’s criminal case that indicated the date that the testimony was given. Id.No other responsive records were found. Id. Bator states in his affidavit that to the best of his
knowledge, “all records and colelctions and/or databases of records within the [U.S. Attorney’s
Office for the District of Massachusetts] likely to contain records responsive to North’s requests
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have been searched.” Id. ¶ 6. Bator further states that he knows of no other location where
records that might be responsive to North’s requests are likely to be located. Id.The fifteen pages of records located by Bator are similar to two additional pages of
records that had been identified in a prior search by EOUSA. Suppl. Decl. of David Luczynski
¶ 6. These seventeen pages were released to North in redacted form, with seven pages released
in full and ten pages released in part. Id. ¶¶ 7, 14. EOUSA applied FOIA Exemption 3, 5 U.S.C.
§ 552(b)(3), to withhold information that would identify the witnesses who testified before the
grand jury. Id. ¶ 13. EOUSA applied FOIA Exemption 7(C), 5 U.S.C. § 553(b)(7)(C), to
withhold portions of the record relating to the identity of third-party individuals, such as potential
witnesses and law enforcement personnel. Id. ¶ 16.
II. LEGAL STANDARD
In reviewing motions for summary judgment under FOIA, the Court must conduct a de
novo review of the record. See 5 U.S.C. § 522(a)(4)(B). In the FOIA context, “de novo review
requires the court to ‘ascertain whether the agency has sustained its burden of demonstrating that
the documents requested . . . are exempt from disclosure under the FOIA.’” Assassination
Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003)
(quoting Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998)). Summary
judgment is proper when “the movant shows 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).
All underlying facts and inferences are analyzed in the light most favorable to the non-
moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Only after an agency
seeking summary judgment proves that it has fully discharged its FOIA obligations is summary
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judgment appropriate. Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Weisberg v.
Dep’t of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983). In opposing a motion for summary
judgment, a party must offer more than conclusory statements. See Broaddrick v. Exec. Office of
the President, 139 F. Supp. 2d 55, 65 (D.D.C. 2001) (citing Laningham v. U.S. Navy, 813 F.2d
1236, 1241 (D.C. Cir. 1987)). Indeed, a plaintiff pursuing an action under FOIA must establish
that the agency has improperly claimed an exemption as a matter of law or that the agency failed
to segregate and disclose all non-exempt information in the requested documents. See Perry-
Torres v. Dep’t of State, 404 F. Supp. 2d 140, 142 (D.D.C. 2005).
Congress enacted FOIA for the purpose of introducing transparency to government
activities. See Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 88 (D.C. Cir. 1984). Congress
remained sensitive, however, to the need to achieve balance between this objective and the
vulnerability of “legitimate governmental and private interests [that] could be harmed by release
of certain types of information.” Critical Mass Energy Project v. Nuclear Regulatory Comm’n,
975 F.2d 871, 872 (D.C. Cir. 1992); see also Summers v. Dep’t of Justice, 140 F.3d 1077, 1079
(D.C. Cir. 1998). Accordingly, FOIA provides nine exemptions pursuant to which an agency
may withhold requested information. See 5 U.S.C. §§ 552(a)(4)(B), (b)(1)-(9). The agency must
demonstrate the validity of any exemption that it asserts. See id.; Beck v. Dep’t of Justice, 997
F.2d 1489, 1491 (D.C. Cir. 1993) (“Consistent with the purpose of the Act, the burden is on the
agency to justify withholding requested documents.”) In addition, summary judgment may be
granted on the basis of the agency’s accompanying affidavits or declarations if they describe “the
justifications for nondisclosure with reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are not controverted by either contrary
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evidence in the record nor evidence of agency bad faith.” Military Audit Project v. Casey, 656
F.2d 724, 738 (D.C. Cir. 1981). These affidavits may be submitted by an official who
coordinated the search, and need not be from each individual who participated in the search. See
SafeCard Servs. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Where the
adequacy of the search is in doubt, the agency “must show beyond material doubt . . . that it has
conducted a search reasonably calculated to uncover all relevant documents.” Weisberg, 705
F.2d at 1351. But “[t]here is no requirement that an agency search every record system.”
Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
An agency also has the burden of detailing what proportion of the information in a
document is non-exempt and how that material is dispersed throughout the document. Mead
Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). Any non-
exempt information that is reasonably segregable from the requested records must be disclosed.
Oglesby v. U.S. Dep’t of the Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996). In addition, district
courts are obligated to consider segregability issues sua sponte even when the parties have not
specifically raised such claims. Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d
1022, 1028 (D.C. Cir. 1999).
III. DISCUSSION
In considering the parties’ cross-motions for summary judgment, the Court shall address
the adequacy of EOUSA’s search for records and the exemptions it has invoked.
A. The Adequacy of EOUSA’s New Search
“To win summary judgment on the adequacy of a search, the agency must demonstrate
beyond material doubt that its search was ‘reasonably calculated to uncover all relevant
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documents.’” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)
(quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). To meet its burden, the
agency may submit affidavits or declarations that explain in reasonable detail and in a non-
conclusory fashion the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121,
126 (D.C. Cir. 1982). The agency must show that it made a “good faith effort to conduct a
search for the requested records, using methods which can be reasonably expected to produce the
information requested.” Oglesby v. Dep’t of the Army, 920 F.2d at 68; accord Campbell v. U.S.
Dep’t of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998). In the absence of contrary evidence, such
affidavits or declarations are sufficient to demonstrate an agency’s compliance with FOIA.
Perry, 684 F.2d at 127. A search need not be exhaustive, Miller v. U.S. Dep’t of State, 779 F.2d
1378, 1383 (8th Cir. 1995), and the adequacy of the search is not determined by its results, but by
the method of the search itself, Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir.
1984). An agency’s failure to find a particular document does not necessarily indicate that its
search was inadequate. Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004); Nation Magazine, 71
F.3d at 892 n.7.
EOUSA has met its burden to prove that its new search for records requested by North
was reasonably calculated to identify all records that might be responsive to North’s requests.
North requested documents relating to the term of the grand jury that indicted him. EOUSA has
provided a declaration from Christopher Bator, one of the attorneys who prosecuted him, who
conducted the search for records within the U.S. Attorney’s Office for the District of
Massachusetts, where the grand jury was empaneled. Bator explains that he searched all the files
pertaining to North that were maintained either by personnel who were involved in North’s
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criminal case or by Maryellen Barrett, the Grand Jury Coordinator. Bator further explains that
these are all the records within the U.S. Attorney’s Office for the District of Massachusetts that
are likely to contain records responsive to North’s request.
North argues that Bator’s affidavit is insufficient because it does not specifically state that
he searched for documents relating to whether any extensions were granted to the grand jury term
or whether the grand jury was convened pursuant to Fed. R. Crim. P. 6 or 18 U.S.C. § 3331. See
Pl.’s Mem. at 9. However, according to the supplemental declaration submitted by EOUSA
Attorney Advisor David Luczynski, Bator reviewed all of North’s FOIA requests prior to
conducting the search, see Suppl. Decl. of David Luczynski ¶ 4, and there is nothing in Bator’s
affidavit that suggests Bator limited his search to only some of the documents requested by
North. The fact that the search did not turn up any documents relating to the extension of the
grand jury term or the legal basis for convening the grand jury does not mean that the agency’s
search was inadequate. Wilbur, 355 F.3d at 678 (“[T]he agency’s failure to turn up a particular
document, or mere speculation that as yet uncovered documents might exist, does not undermine
the determination that the agency conducted an adequate search for the requested records.”).
Accordingly, the Court finds that the evidence submitted by EOUSA is sufficiently detailed to
show that the agency’s new search was thorough and reasonably calculated to retrieve the
documents requested by North.
In his opposition and cross-motion for summary judgment, North attempts to question the
validity of EOUSA’s searches by pointing to inconsistencies in EOUSA’s prior searches. Those
inconsistencies were the reason why EOUSA decided to conduct a new search for responsive
records. See Suppl. Decl. of David Luczynski ¶ 4. However, the agency’s previous failure to
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demonstrate that it had conducted an adequate search does not call into question the validity of
its new search for responsive records.
North has also complained about the fact that EOUSA did not provide docket entries
from his criminal case that may give him the information he is seeking. However, EOUSA is
only required to produce records that were in its custody or control at the time of the search, not
records maintained by the courts. Dockery v. Gonzales, 524 F. Supp. 2d 49, 53 (D.D.C. 2007).
Furthermore, to the extent that North was asking EOUSA to provide affirmative answers to his
questions about his grand jury term, his requests were properly denied. “FOIA does not obligate
agencies to create or retain documents; it only obligates them to provide access to those which it
has created and retained.” Moore v. Bush, 601 F. Supp. 2d 6, 15 (D.D.C. 2009) (citing Kissinger
v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980)).
Therefore, the Court shall grant EOUSA’s motion for summary judgment and deny
North’s motion for summary judgment with respect to the adequacy of the search.
B. Propriety of the Exemptions Applied by EOUSA
In producing the seventeen pages of documents to North, EOUSA withheld information
relating to the identity of potential witnesses and law enforcement officers who may have
participated in the grand jury proceedings, relying on FOIA Exemptions 3 and 7(C). FOIA
Exemption 3 covers matters that are “specifically exempted by statute . . . provided that such
statute either (A) [requires withholding] in such a manner as to leave no discretion on the issue,
or (B) establishes particular criteria for withholding or refers to particular types of matters to be
withheld.” 5 U.S.C. § 552(b)(3). The “statute” at issue here is Federal Rule of Criminal
Procedure 6(e), which requires secrecy for grand jury proceedings. Rule 6(e) qualifies as a
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statute for purposes of FOIA Exemption 3 because it was affirmatively enacted by Congress. 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) bars disclosure of information that 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.” Senate of the Commonwealth of P.R. ex rel. Judiciary Comm.
v. U.S. Dep’t of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987) (internal quotation marks omitted).
Disclosure of a grand jury subpoena would reveal some secret aspect of the grand jury’s
investigation. See Kishore v. Dep’t of Justice, 575 F. Supp. 2d 243, 255 (D.D.C. 2008) (finding
that grand jury subpoenas may not be disclosed under Rule 6(e).
FOIA Exemption 7(C) covers “records or information compiled for law enforcement
purposes, but only to the extent that the production of such records and information . . .could
reasonably be expected to constitute an unwarranted invasion of personal privacy . . . .” 5 U.S.C.
§ 552(b)(7)(C). Exemptions 7(C) require the court to balance the privacy interests of the
individual whose records are sought with the public’s interests in their disclosure. Beck v. Dep’t
of Justice, 997 F.2d at 1491. The Supreme Court has broadly interpreted the personal privacy
interests protected by Exemption 7(C). Id.; see U.S. Dep’t of Justice v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 765-66 (1989) (recognizing a strong privacy interest in
individualized information collected by law enforcement agencies). It has long been recognized
that disclosing information about an individual’s involvement in law enforcement proceedings
may constitute an unwarranted invasion of personal privacy for purposes of Exemption 7(C). See
Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003) (“On the privacy side of
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the ledger, our decisions have consistently supported nondisclosure of names or other
information identifying individuals appearing in law enforcement records, including
investigators, suspects, witnesses, and informants.”).
The Court agrees that EOUSA appropriately invoked Exemptions 3 and 7(C) to redact the
names of third-party individuals who appear to have participated in the grand jury proceedings.
In addition, North does not argue that EOUSA improperly invoked these exemptions. It also
appears to the Court that all non-exempt information has produced from the responsive records.
Therefore, the Court shall grant EOUSA’s renewed motion for summary judgment and deny
North’s motion for summary judgment with respect to Count III of the Amended Complaint.
Plaintiff’s [106] Motion to Reconsider Summary Judgment on Count I of the Amended
Complaint.
IV. CONCLUSION
For the foregoing reasons, the Court shall GRANT Defendant Executive Office for
United States Attorneys’ [71] Renewed Motion for Summary Judgment with respect to Count III
of the Amended Complaint and DENY Plaintiff’s [93] Consolidated Motion for Summary
Judgment and Opposition to Defendant’s Motion for Summary Judgment with respect to Count
III of the Amended Complaint.
The Court notes that on March 22, 2011, Plaintiff filed a [106] Motion to Reconsider
Summary Judgment on Count I of the Complaint. The Court shall order Defendant Drug
Enforcement Administration to respond to Plaintiff’s motion to reconsider and withhold entry of
final judgment until the Court rules on Plaintiff’s motion. An appropriate Order accompanies
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this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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