UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) MOHAMMED S. ROBLE, ) ) Plaintiff, ) ) v. ) Civil Action No. 17-cv-717 (TSC) ) DEPARTMENT OF JUSTICE, ) ) Defendant. ) ) )

MEMORANDUM OPINION

Plaintiff, appearing pro se, challenges the Executive Office for United States

Attorneys’ (“EOUSA”) denial of his request under the Freedom of Information Act

(“FOIA”) and the Privacy Act. The Department of Justice, of which EOUSA is a

component, has moved for summary judgment under Federal Rule of Civil Procedure 56

(ECF No. 10). For the reasons explained below, the motion will be GRANTED.

I. BACKGROUND

On October 11, 2016, Plaintiff requested copies of “Grand jury minutes

(transcripts) taken on November 6 th 2013” pertaining to his criminal indictment in the

Superior Court of the District of Columbia. (Decl. of Vinay J. Jolly, ECF No. 10-1, Ex.

A). Such records “were originally maintained in the criminal case United States v.

Roble, No. 13-CF1-6095.” (Jolly Decl. ¶ 9). Plaintiff wrote that he had “been provided

with several other transcripts from the grand jury . . . taken on April 17, 19, 24 th , May

10, 15 and 16 th , 2013 prepared by your Office.” (Jolly Decl., Ex. A).

1 By letter of November 22, 2016, EOUSA denied Plaintiff’s request on the

erroneous premise that he had sought third-party records. (Id., Ex. B). Plaintiff

appealed to the Office of Information Policy (“OIP”), which accurately described the

request as seeking “access to grand jury minutes from [Plaintiff’s] criminal case

recorded on November 6, 2013” but nonetheless affirmed EOUSA’s denial “on

modified grounds.” (Id., Ex. E). OIP explained: “To the extent that the specific grand

jury records that you seek exist, any such records would be protected from disclosure

pursuant to

(b)(3),” which “concerns matters specifically exempted from

release by a statute other than the FOIA[,]” (Ex. E). OIP cited “Rule 6(e) of the Federal

Rules of Criminal Procedure, which pertains to the secrecy of grand jury proceedings.”

(Id.). It stated that because any responsive records “would be categorically exempt

from disclosure, EOUSA was not required to conduct a search for the requested

records.” (Id.). OIP advised Plaintiff of his right to file this lawsuit, which commenced

on April 19, 2017.

II. LEGAL STANDARD

Summary judgment is appropriate where the record shows there is no genuine

issue of material fact and the movant is entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,

(1986); Waterhouse

v. District of Columbia,

(D.C. Cir. 2002). “FOIA cases typically and

appropriately are decided on motions for summary judgment.” Georgacarakos v. FBI,

(D.D.C. 2012) (citation omitted). The district court conducts

a de novo review of the government’s decision to withhold requested documents under

any of FOIA’s specific statutory exemptions. See

(a)(4)(B). The burden

2 is on the government agency to show that nondisclosed, requested material falls within

a stated exemption. See Petroleum Info. Corp. v. U.S. Dep't of Interior,

(D.C. Cir. 1992) (citing

(a)(4)(B)).

In FOIA cases, summary judgment may be based solely on information provided

in the agency’s supporting declarations. See ACLU v. U.S. Dep't of Def.,

(D.C. Cir. 2011); Students Against Genocide v. Dep’t of State,

(D.C. Cir. 2001). The D.C. Circuit instructs:

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.

ACLU,

. “Ultimately, an agency’s justification for invoking a FOIA

exemption is sufficient if it appears ‘logical’ or ‘plausible.’”

(quoting Larson v.

Dep’t of State,

(D.C. Cir. 2009) (internal quotation marks omitted)).

“To successfully challenge an agency’s showing that it complied with the FOIA, the

plaintiff must come forward with ‘specific facts’ demonstrating that there is a genuine

issue with respect to whether the agency has improperly withheld extant agency

records.” Span v. U.S. Dep’t of Justice,

(D.D.C. 2010)

(quoting Dep’t of Justice v. Tax Analysts,

(1989)).

III. ANALYSIS

1. Privacy Act

Defendant asserts correctly that disclosure of the requested records is not

required under the Privacy Act because the criminal files of the United States

Attorneys’ Offices have been properly exempted from that Act’s access provisions.

3 (See Def.’s Mem. at 4-5, ECF No. 10) (citing Jolly Decl. ¶ 10 and 5 U.S.C. § 552a

(j)(2)). Because the Privacy Act excepts from its coverage documents required to be

disclosed under the FOIA, 5 U.S.C. § 552a(b)(2), EOUSA duly proceeded “under the

provisions of the FOIA.” (Jolly Decl. ¶ 11).

2. FOIA

FOIA Exemption 3 protects from disclosure records that are “specifically

exempted from disclosure by statute . . ., if that statute (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[.]”

(b)(3)(A). To prevail under this exemption, the

government “need only show that the statute claimed is one of exemption as

contemplated by Exemption 3 and that the withheld material falls within the statute.”

Larson v. Dep’t of State,

(D.C. Cir. 2009) (citation omitted).

Citing Federal Rule of Criminal Procedure 6(e)(2)(B), the D.C. Circuit has

“recognized that ‘requests for documents related to grand jury investigations implicate

FOIA’s third exemption.’” 1 Murphy v. Exec. Office for U.S. Attorneys,

(D.C. Cir. 2015) (quoting Lopez v. DOJ,

(D.C. Cir. 2005)).

Not all grand jury material is protected, however. See Senate of the Com. of Puerto

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

(D.C.

Cir. 1987) (“We have never embraced a reading of Rule 6(e) so literal as to draw “a veil

1 “Because it was affirmatively enacted by Congress, Rule 6(e) is recognized as a ‘statute’ for Exemption 3 purposes.” Cunningham v. Holder,

(D.D.C. 2012) (citing Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv.,

(D.C. Cir. 1981)).

4 of secrecy . . . over all matters occurring in the world that happen to be investigated by

a grand jury.”) (citation and internal quotation marks omitted)); accord Lopez,

(differentiating exempt material from non-exempt material). Exemption 3

only protects information that, if disclosed, “‘would tend to reveal some secret aspect of

the grand jury’s investigation, including the identities of witnesses.’” Murphy,

(quoting Hodge v. FBI,

(D.C. Cir. 2013); see Senate of

P.R.,

(listing protected matters 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”) (citation and internal quotation marks

omitted)).

EOUSA’s declarant confirms the government’s reliance on Exemption 3 to

withhold “grand jury transcripts and minutes, pertaining to the direction and targets of

the grand jury and naming of grand jury witnesses.” Jolly Decl. ¶ 13. The declarant

explains that the disclosure of such matters would reveal “the scope of the grand jury’s

investigation by setting forth where the government sought to find evidence to develop

its case, how the government developed its case, and who it relied upon to develop the

elements of crimes.”

The declarant confirms also that no court orders authorizing

disclosure of “any grand jury material” have been issued.

n.2 (citing Fed. R. Crim.

P. 6(e)(3)(E)).

EOUSA’s response was proper since “a grand jury transcript itself epitomizes the

sensitive details of the proceedings that Congress sought to keep protected.” Sanders v.

Obama,

(D.D.C. 2010), aff'd sub nom. Sanders v. U.S. Dep't

of Justice, No. 10-5273,

(D.C. Cir. Apr. 21, 2011) (citing cases); see

5 Sanders,

, at *1 (“[T]he district court correctly held that the

government properly withheld the grand jury transcript under FOIA Exemption 3

because the transcript would reveal “such matters as the identities . . . of witnesses . . .,

the substance of testimony, [and] the . . . questions of jurors.”) (quoting Stolt–Nielsen

Transp. Group Ltd. v. United States,

(D.C. Cir. 2008) (ellipses in

original)). In addition, EOUSA has plausibly explained why the responsive records

would not be segregable. (Jolly Decl. ¶ 14); cf. Sanders,

(finding segregability a non-issue where all responsive records were released in full and

the grand jury transcript was “exempted in full”).

Plaintiff’s counterarguments are misplaced. It is apparent from the complaint

and opposition that Plaintiff is seeking confirmation of what he describes as the

“second (new)” grand jury proceedings, which resulted in his indictment. Plaintiff

explains that he “was informed that multiple Grand juries heard evidence in the

criminal case against him, and that the second (new) Grand jury which returned the

indictment did not investigate the case nor hear live testimony from any witness.” (Pl.’s

Opp’n at 1, ECF No. 15). In contrast, Plaintiff alleges, “the first (prior) Grand jury

which investigated the case and heard live testimony from all the witnesses, found the

government’s evidence flawed and inconsistent[.]” (Id. at 1-2). Plaintiff surmises that

“[t]here was no investigations [sic] done nor live testimony from any witness heard by

the second (new) Grand jury,” which “only relied upon ‘hearsay statements’ told by the

Assistant United States Attorney . . . to return the indictment.” (Pl.’s Opp’n at 2).

In a FOIA case, however, it is established that “the identity of the requester is

irrelevant to whether disclosure is required,” Stonehill v. IRS,

, 538-39

6 (D.C. Cir. 2009) (citation omitted), and, with few exceptions not applicable to

Exemption 3, a FOIA “requester’s . . . purpose for the disclosure [is] generally

immaterial.” Clay v. U.S. Dep't of Justice,

(D.D.C. 2010)

(citing North v. Walsh,

(D.C. Cir. 1989) (other citations omitted));

see Peay v. Dep't of Justice, No. 04-cv-1859,

, at *2, n.3 (D.D.C.

June 29, 2006) (noting that in contrast to the balancing requirements of exemptions 6

and 7(C), “exemption 3 does not authorize” the weighing of interests as “‘Congress has

done the necessary balancing and enacted FOIA to represent the cross-currents of

concern”) (quoting Crooker v. Bureau of Alcohol, Tobacco and Firearms,

(D.C. Cir. 1981)); see also Dugan v. Dep’t of Justice,

(D.D.C. 2015) (declining to “address [FOIA] plaintiff’s arguments concerning his

criminal prosecution or his purported innocence”); Sanders,

(“ascertain[ing] how the government demonstrated probable cause in order to obtain an

indictment in [FOIA requester’s] criminal prosecution . . . is not a consideration within

the jurisdiction of this Court nor does this justification rebut the Defendants’ proper

claim of Exemption 3 and proper withholding of the grand jury transcript”).

Plaintiff has offered nothing to defeat summary judgment in this FOIA case, and

the record and prevailing case law support EOUSA’s Exemption 3 claim. Therefore,

Defendant, having shown its full compliance with FOIA, is entitled to judgment as a

matter of law.

7 IV. CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment will be

GRANTED. A corresponding order will issue separately.

Date: May 21, 2018

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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