UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RYAN BAGWELL,

Plaintiff,

v. Case No. 15-cv-00531 (CRC)

UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Ryan Bagwell, a Pennsylvania State University alumnus, seeks to uncover public

records related to the University’s role in the child-sex-abuse scandal surrounding its former

assistant football coach Jerry Sandusky. Compl. ¶ 3. On April 30, 2014, Bagwell lodged a

Freedom of Information Act (“FOIA”) request with the Executive Office for United States

Attorneys (“EOUSA”), requesting “access to any and all records of investigations between

November 1, 2011 and [April 30, 2014] that pertain to allegations of child sexual abuse that

occurred on the campus of The Pennsylvania State University.” Id. ¶ 5. Bagwell’s interest in these

particular records stems from a now-closed federal criminal investigation of the Sandusky matter

and an independent investigation into the school’s handling of it conducted by former FBI Director

Louis J. Freeh and his law firm. Pl.’s Mem. Opp’n Def.’s Mot. Summ. J. 1–2.

After some back-and-forth involving Bagwell, EOUSA’s FOIA/Privacy Act office, and

DOJ’s Office of Information Policy (“OIP”), EOUSA provided Bagwell with a final response to his

FOIA request on July 8, 2015, several months after Bagwell filed this action. It released 517 pages

of records and withheld 104 pages in full. Id. at 4. It also withheld over 2,700 pages of records and

86 gigabytes of electronic information that it never reviewed but instead categorically labeled

“grand jury information” or “grand jury material.” Id.; Def.’s Mem. Supp. Mot. Summ. J. 8–9. DOJ has now moved for summary judgment, contending that it has produced all of the responsive

records to which Bagwell is entitled, and Bagwell has cross-moved for summary judgment,

contending that DOJ has not met its burden to show that the withheld records are exempt from

FOIA’s disclosure requirements. Because the Court cannot determine—based on the declarations

and Vaughn Index provided by DOJ—whether the search for responsive records was adequate or to

what degree any FOIA exemptions shield the withheld documents from disclosure, it will defer

resolution of the motions to allow DOJ an opportunity to supplement its documentation.

I. Standard of Review

Congress passed FOIA “to pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.” Am. Civil Liberties Union v. U.S. Dep’t of Justice,

(D.C. Cir. 2011). The statute imposes a general obligation on the government to provide

records to the public.

(a). Although FOIA provides for exceptions to this general

obligation to disclose,

(b), “[t]he basic purpose of FOIA is to ensure an informed

citizenry, vital to the functioning of a democratic society, needed to check against corruption and to

hold the governors accountable to the governed,” NLRB v. Robbins Tire & Rubber Co.,

(1978). Thus, FOIA “‘exemptions are explicitly made exclusive,’” Milner v. U.S. Dep’t

of Navy,

, 565 (2011) (citing EPA v. Mink,

(1973)), and they “must be

‘narrowly construed,’”

(citing FBI v. Abramson,

(1982)).

FOIA cases are appropriately decided on cross-motions for summary judgment. See

Brayton v. Office of U.S. Trade Rep.,

(D.C. Cir. 2011). In deciding a motion for

summary judgment, the Court assumes the truth of the non-movant’s evidence and draws all

reasonable inferences in the non-movant’s favor. See Anderson v. Liberty Lobby, Inc.,

(1986). The government bears the burden to establish that its claimed exemptions apply to

each document for which it invokes an exemption. Am. Civil Liberties Union v. U.S. Dep’t of

2 Def.,

(D.C. Cir. 2011). The government cannot satisfy this burden with

affidavits that are vague or conclusory, or merely parrot the statutory standard. Consumer Fed’n of

Am. v. U.S. Dep’t of Agric.,

(D.C. Cir. 2006). The declarations must describe

the justifications for withholding in “specific detail, demonstrat[ing] that the information withheld

logically falls within the claimed exemption.” Am. Civil Liberties Union,

. “When

demonstrating that a FOIA exemption applies to some portion of a document withheld, the agency

must also provide a detailed justification for its non-segregability,” Johnson v. Exec. Office for U.S.

Attorneys,

(D.C. Cir. 2002) (emphasis added), and the agency should “describe

what portion of the information is non-exempt and how that material is dispersed throughout the

document,” Mead Data Cent., Inc. v. U.S. Dep’t of Air Force,

(D.C. Cir. 1977).

II. Analysis

Both parties’ motions for summary judgment revolve around four main issues: (1) whether

DOJ’s search for responsive records was adequate; (2) whether DOJ is operating under the correct

legal standard for withholding “grand jury material”; (3) whether DOJ’s Vaughn Index is adequate;

and (4) whether DOJ has satisfied its segregability obligations. The Court will discuss each in turn.

A. Adequacy of the Search

The Court cannot conclude, based on the record before it, that DOJ’s search for responsive

records was adequate. “[A]n agency responding to a FOIA request must ‘conduct[] a search

reasonably calculated to uncover all relevant documents,’ and, if challenged, must demonstrate

‘beyond material doubt’ that the search was reasonable.” Truitt v. U.S. Dep’t of State,

(D.C. Cir. 1990) (alteration in original) (quoting Weisberg v. U.S. Dep’t of Justice,

(D.C. Cir. 1983)). “‘The issue is not whether any further documents might

conceivably exist but rather whether the government’s search for responsive documents was

adequate.’ The adequacy of an agency’s search is measured by a ‘standard of reasonableness,’ and

3 is ‘dependent upon the circumstances of the case.’”

(quoting Weisberg,

). “If,

however, the record leaves substantial doubt as to the sufficiency of the search, summary judgment

for the agency is not proper.”

Furthermore, “[i]n order to establish the adequacy of a search,

agency affidavits must be . . . ‘relatively detailed and non-conclusory, and . . . submitted in good

faith.’” SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991) (quoting Ground

Saucer Watch, Inc. v. CIA,

(D.C. Cir. 1981)). These “affidavits are accorded a

presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the

existence and discoverability of other documents.’”

(quoting SafeCard Servs., 926 at 1200).

At present, DOJ has failed to demonstrate beyond material doubt that it has conducted a

search reasonably calculated to uncover all relevant documents. First, the FOIA contact person for

the United States Attorney’s Office for the Middle District of Pennsylvania (“USAO/MDPA”)

attests to having searched “all systems of records located within the USAO/MDPA that were likely

to contain responsive records to Plaintiff’s request,” Decl. of Jodi Matuszewski ¶ 15, but does not

indicate whether this search included the office’s email system. Clearly, DOJ considered certain

emails to be responsive to Bagwell’s request, as it acknowledged in its Vaughn Index that it

withheld some “email conversations among Assistant United States Attorneys.” Vaughn Index –

EOUSA, ECF No. 12-5. The Court has no way of knowing, however, the method by which DOJ

searched for and located those particular emails and thus cannot determine whether the search was

likely to have captured all responsive emails. Second, the Court’s confusion over the status of any

email search is heightened by the public remarks of former FBI Director Freeh, who conducted the

independent investigation into the Sandusky matter “in parallel with several other active

investigations by agencies and governmental authorities, including the . . . United States Attorney

[for the Middle District of Pennsylvania].” Remarks of Louis Freeh, July 12, 2012, ECF No. 13-8.

Mr. Freeh stated that he “continuously interfaced and cooperated with those agencies and

4 authorities,”

which at least suggests that a record of communication may exist between his firm

and USAO/MDPA regarding the investigation. While “an agency’s failure to find a particular

document does not necessarily indicate that its search was inadequate,” North v. U.S. Dep’t of

Justice,

(D.D.C. 2011), in this instance the search’s apparent failure to

uncover any material along these lines raises a legitimate question as to thoroughness of the search.

The current record thus leaves the Court in substantial doubt as to the sufficiency of DOJ’s search.

B. Grand Jury Material

DOJ has also failed adequately to justify its invocation of FOIA Exemption (b)(3),

specifically as it relates to what DOJ labels “grand jury material.” Def.’s Mem. Supp. Mot. Summ.

J. 9. This exemption “permits an agency to withhold material ‘specifically exempted from

disclosure by statute . . . provided that such statute [requires withholding] in such a manner as to

leave no discretion on the issue.’

(b)(3).” Senate of the Commonwealth of Puerto

Rico on Behalf of Judiciary Comm. v. U.S. Dep’t of Justice,

(D.C. Cir. 1987).

As relevant here, “[t]he Federal Rules of Criminal Procedure, in turn, prohibit . . . disclosure of

‘matters occurring before [a] grand jury.’ Fed. R. Crim. P. 6(e)(2). Relying on the incorporation of

Rule 6(e) within exemption (b)(3),”

DOJ here contends that “grand jury material is categorically

exempt,” and claims that “it is the customary practice of EOUSA when it receives requests for ‘all

records’ as in this case, to inform the USAO to respond with all responsive records except for

materials related to the grand jury, which are exempt as a matter of law.” Def.’s Mem. Supp. Mot.

Summ. J. 9. Not all material that relates to a grand jury, however, is exempt as a matter of law.

The Court of Appeals for the D.C. Circuit has held that “[t]here is no per se rule against

disclosure of any and all information which has reached the grand jury chambers.” Rather,

[t]he touchstone is whether disclosure would tend to reveal some secret aspect of the grand jury’s investigation[—]such matters as the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations

5 or questions of jurors, and the like. The disclosure of information coincidentally before the grand jury [which can] be revealed in such a manner that its revelation would not elucidate the inner workings of the grand jury is not prohibited.

Senate of Puerto Rico,

(internal quotation marks omitted). This approach makes

sense from a policy perspective as well: “Automatically sealing all that a grand jury sees or hears

would enable the government to shield any information from public view indefinitely by the simple

expedient of presenting it to the grand jury.”

This Court “recognize[s] the importance of maintaining the secrecy of grand jury

proceedings, and acknowledge[s] the ‘necessarily broad’ scope of Rule 6(e).”

at 584 (quoting

Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv.,

(D.C. Cir.

1981)). And “[i]t may turn out, in this case, that most, or even all, of the material withheld pursuant

to exemption (b)(3) cannot be disclosed without compromising the secrecy of a grand jury’s

deliberations.”

But as in Senate of Puerto Rico, DOJ has “not yet supplied the information a

court must have in order to intelligently make that judgment.”

DOJ does provide some

information on this front, but not enough. For instance, it asserts that it “invoked Exemption 3 to

withhold names of grand jury witnesses,” correctly observing that “Exemption 3 applies to the

identities of” those witnesses. Def.’s Mem. Supp. Mot. Summ. J. 9. It also implies that it withheld

a draft indictment, which “is most assuredly a document that reveals the strategy and direction of a

grand jury investigation.”

Without any additional specificity as to what documents and files it

withheld, however, DOJ has not demonstrated—and the Court cannot determine—that all 2,700

pages and 86 gigabytes of withheld material would reveal some secret aspect of the grand jury’s

proceedings or deliberations. The Court is further troubled by the possibility that no review was

ever conducted of the “records related to the grand jury proceedings” in the first place.

Matuszewski Decl. ¶ 14. Without such a review, it is unclear how EOUSA could determine that the

exemption applies, let alone “suppl[y] the information a court must have in order to intelligently

6 make [the] judgment” that the material it withheld would reveal some secret aspect of the grand

jury’s inner workings or investigation. Senate of Puerto Rico,

.

Under Senate of Puerto Rico, it is insufficient for an agency to withhold documents merely

because those documents had been the subject of a subpoena or at some point were before a grand

jury.

“[U]nless” the fact that “material has been presented to the grand jury . . . automatically

exempts the material [from disclosure], a position [the D.C. Circuit] reject[s], it is incumbent upon

[a court] to require some affirmative demonstration of a nexus between disclosure and revelation of

a protected aspect of the grand jury’s investigation.”

Unless and until DOJ makes that

affirmative demonstration, it cannot rely on Exemption (b)(3) to shield from disclosure everything

it considers to be in some way “related” to the grand jury’s proceedings.

C. DOJ’s Vaughn Index

“The measure of a Vaughn index is its descriptive accuracy,” King v. U.S. Dep’t of Justice,

(D.C. Cir. 1987), and DOJ’s Vaughn Index fails to measure up. To achieve the

necessary level of descriptive accuracy, “[a] withholding agency [generally] must describe each

document or portion thereof withheld, and for each withholding it must discuss the consequences of

disclosing the sought-after information.”

at 223–24 (D.C. Cir. 1987). “Vaughn’s call for

specificity imposes on the agency the burden of demonstrating applicability of the exemptions

invoked as to each document or segment withheld.”

. Most importantly, “[c]ategorical

description of redacted material coupled with categorical indication of anticipated consequences of

disclosure is clearly inadequate.”

Therefore, “[i]f the government chooses to submit a short Vaughn Index containing

abbreviated descriptions, it must supplement the index with detailed affidavits that do more than

merely repeat the same generalized categorization of content.” Am. Immigration Council v. U.S.

Dep’t of Homeland Sec.,

(D.D.C. 2013) (emphasis added) (citing

7 Judicial Watch, Inc. v. FDA,

(D.C. Cir. 2006); Coastal States Gas Corp. v. U.S.

Dep’t of Energy,

(D.C. Cir. 1980) (index identifying ‘who wrote the

memorandum, to whom it was addressed, its date, and a brief description of the memorandum,’

accompanied by affidavits drafted in ‘conclusory terms’ deemed insufficient)). So “[w]hile the

government need not furnish repetitive descriptions of the same type of document and may describe

commonalities among its withholdings, it must avoid resorting to explanation in generalities.”

At the same time, a “‘document-by-document’ description in the Vaughn Index may not always be

necessary, particularly when the withholdings comprise multiple, duplicative records and when the

government’s supporting affidavits are ‘sufficiently detailed to allow the district court to fairly

evaluate’ the application of a claimed exemption to distinct categories of documents.”

(quoting

Gallant v. NLRB,

(D.C. Cir. 1994)).

The four-page Vaughn Index DOJ submits is plainly insufficient under the King standard.

In addition to being exceptionally short, its descriptions of withheld documents are quite general

and vague, and it links categories of withheld documents to corresponding FOIA exemptions in a

purely conclusory manner. The affidavits, too, merely parrot the statutory standards that

correspond to each exemption rather than provide any new detail. When an agency’s “declarations

and Vaughn index recite the general elements of the [claimed FOIA exemption] without explaining

in relative detail how they apply to the documents in question,” it has not met its burden to

demonstrate that it withheld each document properly. Envtl. Integrity Project v. Small Bus.

Admin., No. 1:13-CV-01962-CRC,

(D.D.C. Aug. 5, 2015) (emphasis

added). DOJ has failed to meet its burden here. 1

1 The Court is mindful, with respect to grand jury material, that listing individual records in a Vaughn Index could defeat the very secrecy interests that Rule 6(e) is designed to protect. DOJ may, therefore, describe the specific types of grand jury material it ultimately decides to withhold

8 Because the Court finds that DOJ’s “Vaughn Index and explanations of the withholdings are

insufficient as a whole,” it cannot grant summary judgment for the agency.

As in American

Immigration Council, if DOJ “does not produce the contested records, [it] must submit revised

documentation that is sufficiently detailed and comprehensive to meet the evidentiary standards set

out in King,

, as well as the exemption-specific standards . . . .”

D. DOJ’s Demonstration of Nonsegregability

Under FOIA, an agency is required to provide “[a]ny reasonably segregable portion of a

record . . . to any person requesting such record after deletion of the portions which are exempt

under this subsection.”

(b). A “District Court ha[s] an affirmative duty to consider

the segregability issue” and make a segregability finding. Trans-Pac. Policing Agreement v. U.S.

Customs Serv.,

(D.C. Cir. 1999). DOJ contends that it has fulfilled its

segregability obligation because one of its employees “attested that no reasonably segregable

information has been withheld.” Def.’s Mem. Supp. Mot. Summ. J. 20–21. Without a sufficient

Vaughn Index or more-detailed declarations, however, the Court cannot conclude that DOJ has

fulfilled its segregability obligation.

“In order to demonstrate that all reasonably segregable material has been released, the

agency must provide a ‘detailed justification’ for its non-segregability. However, the agency is not

required to provide so much detail that the exempt material would be effectively disclosed.”

Johnson v. Executive Office for U.S. Attorneys,

(D.C. Cir. 2002) (quoting Mead

Data,

). When an agency provides a requestor with a “combination” of affidavits

stating that all reasonably segregable information has been released, along with “a comprehensive

on a categorical basis either in a revised declaration or in a more-thorough Vaughn Index. What is most important is that DOJ actually review the materials against the standards set forth in Senate of Puerto Rico and make the required affirmative showing.

9 Vaughn index, describing each document withheld, as well as the exemption under which it was

withheld,” then it has taken action “sufficient to fulfill the agency’s obligation to show with

‘reasonable specificity’ why a document cannot be further segregated.”

Here, however, all the

Court has before it is the vague declaration of an employee. The Court lacks both an adequate

“Vaughn ind[ex] and copies of the redacted records,” Higgins v. U.S. Dep’t of Justice,

(D.D.C. 2013), which limits its ability to find that “all reasonably segregable records

and portions of records have been released to [the] plaintiff,”

As a result, the Court is unable to

make a segregability finding at this time.

III. Conclusion

For the foregoing reasons, it is hereby

ORDERED that Defendant shall conduct any necessary additional searches, and file a

supplemental memorandum in support of its motion for summary judgment, including additional

affidavits and a revised Vaughn index, on or before January 29, 2016.

ORDERED that Plaintiff shall respond to Defendant’s supplemental submissions on or

before February 12, 2016.

SO ORDERED.

CHRISTOPHER R. COOPER United States District Judge

Date: December 18, 2015

10