UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FULVIO FLETE-GARCIA,

Plaintiff, Civil Action No. 19-2382 (RDM) v.

U.S. DEPARTMENT OF JUSTICE,1

Defendant.

MEMORANDUM OPINION AND ORDER

In the summer of 2019, Plaintiff Fulvio Flete-Garcia sought to file five Freedom of

Information Act (“FOIA”) requests with Defendant the Department of Justice, Executive Office

for the United States Attorneys (“EOUSA”). Dkt. 1 at 2–3 (Compl.); see also

.

After EOUSA failed to respond to any of his requests. Plaintiff brought this action. EOUSA now

moves to dismiss, or in the alternative, for summary judgment. Dkt. 20. Although Plaintiff has

failed to respond to that motion, the Court must nonetheless determine for itself whether the

undisputed material facts support granting summary judgment in favor of EOUSA. See Winston

& Strawn, LLP v. McLean,

, 508–09 (D.C. Cir. 2016).

For the reasons set forth below, the Court will GRANT in part and DENY in part

EOUSA’s motion.

1 Plaintiff names both the Department of Justice and EOUSA as defendants, but “the Department of Justice, as the parent agency of EOUSA . . . is the proper defendant in this FOIA case.” Corley v. Sessions,

, 166 n.2 (D.D.C. 2017). I. BACKGROUND

A. Factual Background

Plaintiff, a federal prisoner who is proceeding pro se, seeks records related to the court

proceedings leading up to his criminal conviction. Because Plaintiff has not responded to

EOUSA’s motion, let alone offered evidence controverting its factual allegations, the Court

relies primarily on EOUSA’s statement of undisputed material facts, Dkt. 20-1 (SUMF), and the

declaration of Natasha Hudgins, an Attorney-Advisor with the EOUSA component that

administers FOIA, Dkt. 25-1 at 1 (Hudgins Decl. ¶ 1). See Fed. R. Civ. P. 56(c)(1) (establishing

that “[a] party asserting that a fact cannot be or is genuinely disputed must support th[at]

assertion”); Husain v. Barsa, No. 15-708,

, at *1 (D.D.C. Feb. 19, 2021)

(relying on the defendant’s statement of undisputed material facts because the plaintiff had not

controverted them in her opposition). The Court, however, also relies on the documents attached

to Plaintiff’s complaint, the authenticity of which EOUSA does not dispute.

1. Request No. 1

On June 12, 2019, Plaintiff mailed a FOIA request to EOUSA seeking “a complete copy

of the discovery related to” the criminal case brought against him by the United States in the

U.S. District Court for the District of Massachusetts. Dkt. 1-1 at 2–4 (Compl. Ex. 1). EOUSA

acknowledged receipt of this request on June 19, 2019 and assigned it a tracking number. Dkt.

20-1 at 1 (SUMF ¶ 4). On July 18, 2019, EOUSA wrote to Plaintiff, advising him that his

request concerned “material previously requested” from EOUSA and that, as a result, EOUSA

was treating the request “as a duplicate of” his earlier request (which is not at issue in this

litigation). Dkt. 25-1 at 11 (Hudgins Decl. Ex. B). Although the letter also stated (in some

2 tension with that determination) that EOUSA would release “[a]ll non-exempt responsive

records . . . as soon as practicable,” the letter concluded as follows:

This is the final action on this above-numbered request. If you are not satisfied with [the] response to this request, you may administratively appeal by writing to the Director, Office of Information Policy (OIP), United States Department of Justice, Suite 11050, 1425 New York Avenue, NW, Washington, DC 20530- 0001, or you may submit an appeal through OIP’s FOIAonline portal by creating an account on the [designated] web site. . . . Your appeal must be postmarked or electronically transmitted within ninety (90) days of the date of my response to your request. . . .

You may contact our FOIA Public Liaison at the telephone number listed above for any further assistance and to discuss any aspect of your request. . . . .

(Hudgins Decl. Ex. B). Plaintiff never filed an administrative appeal, and the duplicate

FOIA request is the subject of litigation in another FOIA lawsuit that Plaintiff is pursuing.

(Hudgins Decl. ¶¶ 9–10).

2. Request Nos. 2, 3, and 5

According to EOUSA, it has no record of Request Nos. 2, 3, and 5, and it thus did not

process or respond to any of those requests. The undisputed evidence shows the following:

Request No. 2, a copy of which is attached to Plaintiff’s complaint, is dated June 21,

2019.2 Dkt. 1-1 at 7–8 (Compl. Ex. 2). That request sought various written, audio, and video

records relating to his criminal case before the U.S. District Court for the District of

Massachusetts.

Also attached to the complaint is a U.S. Postal Service Certified Mail

Receipt, showing that Plaintiff mailed this FOIA request to “United States Attorneys’ Office,

U.S. Department of Justice, 600 E Street, NW, Room 7300, Washington, D.C. 20530” on June

25, 2019.

(Compl. Ex. 2). The Return Receipt, which contains the same item number,

2 The date following Plaintiff’s signature reads “June 21, 2015,” in contrast to the date at the top of the letter, Dkt. 1-1 at 7–8 (Compl. Ex. 2), but Plaintiff alleges that the letter was sent in 2019, Dkt. 1 at 2 (Compl.). 3 reflects that the request was sent to “U.S. Department of Justice, Office of Executive Attorney”

at the same address reflected above, and it shows that the mailing was signed for on July 1, 2019.

(Compl. Ex. 2). The surname of the signatory is apparently “Sase” or “Sass.”

A copy of Request No. 3 is also attached to the complaint, and that request is dated June

24, 2019.

at 13–14 (Compl. Ex. 3). This request sought the following materials:

(1) All orders that reflect the [c]ommencement, [t]ermination, and any extensions of the [g]rand [j]ury[] that heard evidence in this matter;

(2) Transcripts of the instructions and charges given to any [g]rand [j]ury that heard evidence in this matter;

(3) All [g]rand [j]ury voting records from all [g]rand [juries] that heard evidence in this matter; and[]

(4) All [g]rand [j]ury attendance records including names, times, and dates, of all [g]rand [j]urors that heard evidence in this matter.

(Compl. Ex. 3). Plaintiff also requested “a copy of the applicable rules and regulations

of” EOUSA, “as provided for the FOIA/[Privacy Act].”

As with Request No. 2, the Certified

Mail Receipt shows that the request was sent on June 25, 2019.

(Compl. Ex. 3). But,

unlike Request No. 2, this receipt shows that the request was sent to “EOUSA—Dept. of Justice,

175 N Street, NE, Washington, D.C. 20530.”

The Return Receipt uses this same address,

but adds a reference to the “3CON BLDG.”

(Compl. Ex. 3). That receipt shows that

the request was signed for on July 1, 2019 by the same individual who signed for Request No. 2,

and, indeed, the signature appears to be a stamp that was used in both cases.

Finally, a copy of Request No. 5 is also attached to the complaint.

(Compl. Ex.

5). This request is nearly identical to Request No. 3, but it seeks records relating to a

superseding indictment against Plaintiff, with a different indictment number: 15-cr-10381.

As with Request No. 3, the request itself (as opposed to the envelop or receipts) includes the

4 following address: “Executive Office for United States Attorneys, Department of Justice, 175 N

Street, NE, Room 5400, 3 CON BLDG, Washington, D.C. 20530.”

Plaintiff has not

provided the Court with a copy of his Certified Mail Receipt, but the Return Receipt refers to

“EOUSA—Dept. of Justice, 175 N Street, NE, 3 CON BLDG, Washington, D.C. 20530.”

(Compl. Ex. 5). The receipt bears the same signature as that used to acknowledge receipt of

Requests Nos. 2 and 3, and it shows that the item was received on July 2, 2019.

According to the Hudgins declaration, “EOUSA does not have a record of receiving these

three FOIA requests.” Dkt. 25-1 at 4 (Hudgins Decl. ¶ 14). Hudgins further explains that

members of the pubic may submit FOIA requests to EOUSA either online or by mailing their

requests “to EOUSA [at] 175 N Street, NE, Suite 5400, Washington, D.C. 20530-0001.”

(Hudgins Decl. ¶ 16). “All mail to EOUSA goes through two screening locations before being

distributed to the proper office,” and “[c]ertified mail is signed for outside of the EOUSA FOIA

office.”

(Hudgins Decl. ¶ 18). EOUSA’s mail logs, which “track[] all incoming mail

received in the FOIA/PA office,” contain no reference to Request Nos. 2, 3 or 5.

(Hudgins

Decl. ¶¶ 19–20).

3. Request No. 4

Request No. 4 sought the same grand jury materials and regulations as Request Nos. 3

and 5, but for the “[o]riginal [i]ndictment” associated with “indictment [number] 15-cr-10381.”

Dkt. 1-1 at 19 (Compl. Ex. 4). It was mailed to the same address as Request Nos. 3 and 5, and it

was signed for by the same individual.

at 19–23 (Compl. Ex. 4). It arrived, however, the day

before Request No. 5 arrived, compare

(Compl. Ex. 4) with

(Compl. Ex. 5),

and, mysteriously, it—unlike Requests No. 3 and 5—was received by EOUSA’s FOIA office

and was processed. Dkt. 25-1 at 3–4 (Hudgins Decl. ¶ 11).

5 In late July 2019,3 EOUSA sent Plaintiff a final response to the request, asserting that

“any records responsive to [his] request for grand jury material are exempt pursuant to[]

(b)(3), which concerns matters specifically exempted from release by statute (in this

instance, Rule 6(e) of the Federal Rules of Criminal Procedure, which pertains to the secrecy of

grand jury proceedings).”

(Hudgins Decl. Ex. D). EOUSA further noted that the grand

jury orders related to Plaintiff’s case were sealed by the court.

Even though EOUSA

asserted that this letter represented the “final action” with respect to Plaintiff’s request and

provided the same instructions for administrative appeal previously described, the letter also said

that the “EOUSA [was] conducting a search for all other records requested.”

It is not clear if

EOUSA was referring to the copy of “applicable rules and regulations” that Plaintiff sought or if

it was referring to other pending FOIA requests from Plaintiff, or if the sentence was accidentally

included. In any event, EOUSA offers no evidence that it released any records in response to

Request No. 4.

Plaintiff filed an administrative appeal, and in a letter dated December 12, 2019, the

Office of Information Policy (“OIP”) “affirmed EOUSA’s determination that the materials

requested were exempt from disclosure pursuant to

(b)(3).” Dkt. 20-1 at 2–3

(SUMF ¶ 13); Dkt. 25-1 at 18–19 (Hudgins Decl. Ex. E). Echoing the reasoning of EOUSA,

OIP explained that “[b]ecause any such records responsive to [Plaintiff’s] request would be

categorically exempt from disclosure [under Federal Rule of Criminal Procedure 6(e)], EOUSA

was not required to conduct a search for the requested records.” Dkt. 25-1 at 18 (Hudgins Decl.

Ex. E). OIP’s decision, like EOUSA’s response, failed to mention Plaintiff’s request for a copy

3 Although Hudgins asserts that this response was sent on or about July 18, 2019, Dkt. 25-1 at 4 (Hudgins Decl. ¶ 12), the letter is dated July 30, 2019,

(Hudgins Decl. Ex. D). 6 of the applicable rules and regulations of EOUSA, “as provided for the FOIA/PA Acts.” Id.;

Dkt. 1-1 at 19 (Compl. Ex.4).

B. Procedural Background

Plaintiff filed this action on August 6, 2019. Dkt. 1 (Compl.).4 For each of the five

FOIA requests, he alleges that at least 20 days have elapsed since his filing the request and that,

with respect to each request, EOUSA has not responded.

at 2–3 (Compl.). On March 6,

2020, EOUSA moved to dismiss or for summary judgment, arguing that each of Plaintiff’s

claims (corresponding to each of these FOIA requests) fails, albeit for varying reasons:

Plaintiff’s claim with respect to Request No. 1 fails, according to EOUSA, because Plaintiff

never exhausted his administrative remedies; his claims with respect to Request Nos. 2, 3, and 5

fail because EOUSA never received them; and his claim with respect to Request No. 4 fails

because EOUSA properly withheld records pursuant to Exemption 3 of FOIA and Federal Rule

of Criminal Procedure 6(e). See generally Dkt. 20.5

On March 9, 2020, the Court issued a Fox/Neal order instructing Plaintiff to respond to

EOUSA’s motion on or before April 10, 2020. Dkt. 21. On May 14, 2020, Plaintiff alerted the

Court that he had been transferred to a different prison; that he had been “on [a] COVID[-]19

4 Although Plaintiff styles his complaint as a “petition for preliminary injunction,” Dkt. 1 at 1 (Compl.), the Court and EOUSA have treated the filing as Plaintiff’s complaint, and the Court will continue to do so here. (Plaintiff subsequently filed a motion for preliminary injunction, which the Court denied as premature and which Plaintiff has not renewed. Dkt. 6; Minute Order (Dec. 5, 2019)). In any event, Plaintiff has not shown irreparable injury and would therefore not prevail on a motion for preliminary injunction, if the complaint were treated as such. See Flete- Garcia v. U.S. Marshals Serv., No. 18-2442, __F. Supp. 3d__,

, at *2 n.1. 5 EOUSA seems to confuse the request numbers in the headings of its brief, which state that Request No. 5 is exempt from disclosure and that Request Nos. 2, 3, and 4 were never received. Dkt. 20 at 8, 10. The Court assumes, based on the substance of EOUSA’s arguments, that it intends to argue that Request No. 4 is exempt, and that Request Nos. 2, 3, and 5 were never received. 7 prevention lockdown for around 30 days;” and that these conditions were “a big obstacle for

[him] to timely and properly file the brief and appendix for [his] case records.” Dkt. 23 at 2.

The Court, accordingly, extended the deadline for Plaintiff to respond until July 1, 2020. Minute

Order (June 5, 2020). Subsequently, EOUSA notified the Court that it could not confirm that it

had served the Hudgins declaration on Plaintiff, a suspicion raised by EOUSA’s failure to file a

copy of the declaration with the Court. Dkt. 25. EOUSA, then, filed and served the declaration,

and the Court extended Plaintiff’s time to respond until July 21, 2020. Minute Order (June 25,

2020). Having received no response from Plaintiff by August 18, 2020, the Court sua sponte

extended his time to respond until September 15, 2020. Minute Order (Aug. 18, 2020).

Over a year has now passed since EOUSA filed its motion (and over nine months have

passed since EOUSA served the Hudgins declaration), and Plaintiff has yet to file a response.

II. LEGAL STANDARD

EOUSA moves for dismissal or, in the alternative, for summary judgment. On a motion

to dismiss, the Court “must accept as true all of the factual allegations contained in the

complaint.” Erickson v. Pardus,

(2007) (citing Bell Atl. Corp. v. Twombly,

, 555–56 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal,

(2009) (internal quotation marks omitted); see also Twombly,

.

FOIA cases are more frequently resolved on motions for summary judgment. See

Shapiro v. Dep’t of Justice,

(D.D.C. 2016). To prevail on a motion for

summary judgment, the moving party must demonstrate “that there is no genuine issue as to any

material fact and that [it] is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett,

8

(1986); see also Fed. R. Civ. P. 56(a). “In a FOIA action, the Court may

award summary judgment to an agency solely on the basis of information provided in affidavits

or declarations that describe ‘ . . . the justifications for nondisclosure [of records] with reasonably

specific detail . . . and are not controverted by either contrary evidence in the record nor by

evidence of agency bad faith.’” Thomas v. FCC,

(D.D.C. 2008)

(quoting Mil. Audit Project v. Casey,

(D.C. Cir. 1981)). The Court reviews

the agency’s decision de novo, and the agency bears the burden of sustaining its action.

(a)(4)(B).

III. ANALYSIS

A. Request No. 1

The Court begins with Plaintiff’s claim regarding Request No. 1. EOUSA maintains that

this claim fails as a matter of law because Plaintiff failed to exhaust his administrative remedies,

as required under FOIA. Dkt. 20 at 7. The Court agrees.

“Under FOIA, an agency generally must notify a requester of its ‘determination and the

reasons therefore’ within 20 business days of receiving the request.” Khine v. DHS,

(D.C. Cir. 2019) (quoting

(a)(6)(A)(i)). “If the agency meets the 20-day

deadline[,] . . . then the ‘requester is required to administratively appeal that determination before

bringing suit.’”

(quoting Crew v. FEC,

(D.C. Cir. 2013)); see also

Ogelsby v. U.S. Dep’t of Army,

, 61–62 (D.C. Cir. 1990) (“Courts have consistently

confirmed that . . . FOIA requires exhaustion of [the administrative] appeal process before an

individual may seek relief in the courts.”). Moreover, even if the agency does not timely

respond, so long as it responds before the FOIA requester files suit, the requester must exhaust

administrative remedies. Ogelsby, 920 F.2d at 63–64.

9 “Although exhaustion of a FOIA request ‘is not jurisdictional because the FOIA does not

unequivocally make it so,’ . . . still ‘as a jurisprudential doctrine, failure to exhaust precludes

judicial review if the purposes of exhaustion and the particular administrative scheme support

such a bar.’” Wilbur v. CIA,

(D.C. Cir. 2004) (quoting Hidalgo v. FBI,

, 1258–59 (D.C. Cir. 2003)). The key inquiry is whether “permitting [the plaintiff] to

pursue judicial review without benefit of prior [agency] consideration would undercut ‘the

purposes of exhaustion, namely, preventing premature interference with agency processes, . . .

afford[ing] the parties and the courts the benefit of [the agency’s] experience and expertise, . . .

[or] compil[ing] a record which is adequate for judicial review.’” Hidalgo,

(quoting Ryan v. Bentsen,

(D.C. Cir. 1993)). “[W]hen a court concludes that

(1) a plaintiff has failed to exhaust his administrative remedies; and (2) reviewing his claim

would undermine the purposes of exhaustion, the court should dismiss the claim under Federal

Rule of Civil Procedure 12(b)(6).” Hull v. United States Attorney,

, 13

(D.D.C. 2017); see also Bayala v. DHS, Office of Gen. Counsel,

, 35 n.1 (D.C. Cir.

2016); Hidalgo,

.

Here, the uncontroverted record shows that EOUSA responded to Request No. 1 “within

twenty business days (June 19, 2019 to July 18, 2019, not counting July 4, 2019), in accordance

with

(a)(6)(A)(i).” Dkt. 20 at 7. And, in any event, EOUSA responded to

Plaintiff’s FOIA request before Plaintiff brought this action. Plaintiff was, therefore, required to

exhaust his administrative remedies before bringing suit. Ogelsby, 920 F.2d at 63–64. The

Court is unaware of any circumstances, moreover, that might justify disregarding the exhaustion

requirement in this case. The only possibility that occurs to the Court is that Plaintiff might have

been misled by EOUSA’s response, which rejected Request No. 1 as duplicative but also

10 indicated that the office would release “[a]ll non-exempt responsive records . . . as soon as

practicable.” Dkt. 25-1 at 11 (Hudgins Decl. Ex. B). The Court is thus left to wonder whether,

perhaps, Plaintiff did not appeal because he was waiting for EOUSA to release those records.

This possibility, however, offers insufficient basis to deny EOUSA’s motion for two

reasons. First, and most importantly, Plaintiff has had ample opportunity to respond to

EOUSA’s motion for summary judgment and, in particular, to its exhaustion defense, yet he has

failed to do so. Under those circumstances, the Court should not be left to guess about whether

Plaintiff might have been misled; if he was misled, he could have, and should have, submitted a

declaration explaining what happened and why he did not appeal. Second, when read in context,

EOUSA’s denial of his claim would not have confused a reasonable person. EOUSA told

Plaintiff that its decision was final, and it explained that Plaintiff would need to lodge any

administrative appeal within 90 days. That was enough to put Plaintiff on clear notice of his

obligation to exhaust administrative remedies before bringing suit.

The Court will, accordingly, grant summary judgment in favor of EOUSA with respect to

Request No. 1.

B. Request Nos. 2, 3, and 5

EOUSA contends that it is also entitled to prevail with respect to Request Nos. 2, 3, and 5

because it never received those requests. Dkt. 20 at 10–11. “An agency’s disclosure obligations

[under FOIA] are not triggered . . . until it has received a proper FOIA request in compliance

with its published regulations.” Mitchell v. Samuels,

(D.D.C. 2016)

(quoting Antonelli v. Fed. Bureau of Prisons,

(D.D.C. 2008)). More

specifically, the twenty-day period for an agency to respond begins to run “on the date on which

the request is first received by the appropriate component of the agency, but in any event not

11 later than ten days after the request is first received by any component of the agency that is

designated in the agency’s regulations under [FOIA] to receive requests.”

(a)(6)(A)(ii). “If no FOIA request is received, an agency has no reason to search” for or to

produce records. Mitchell,

; see also West v. Jackson, No. 6-5281,

, at *1 (D.C. Cir. Mar. 6, 2007) (per curiam); Banks v. Lappin,

(D.D.C. 2008); Schoenman v. FBI, No. 04-2202,

, at *13 (D.D.C. Mar.

31, 2006); Hutchins v. Dep’t of Justice, No. 00-2349,

, at *1–2 (D.D.C. June

6, 2005). A FOIA requester must offer evidence “sufficient to establish the existence of an

element essential to his case (i.e., proper filing and receipt) to survive [a] dispositive motion[].”

Schoenman,

, at *13.

Here, Plaintiff has done all one might reasonably ask of a FOIA requester, at least with

respect to Request Nos. 3 and 5: he has submitted documentary evidence showing that the

requests were, in fact, mailed to “EOUSA” at the correct address (175 N Street, NE), Dkt. 1-1 at

16–17 (Compl. Ex. 3);

(Compl. Ex. 5); see also Dkt. 25-1 at 4 (Hudgins Decl. ¶ 16)

(agreeing that this is the correct address), and that the mailings were signed for upon receipt,

Dkt. 1-1 at 17 (Compl. Ex. 3);

(Compl. Ex. 5). EOUSA, for its part, answers that

“EOUSA staff checked the mail logs” for its FOIA/PA office and were “unable to locate any

correspondence from Plaintiff regarding these . . . requests.” Dkt. 25-1 at 5 (Hudgins Decl.

¶ 20). But that still leaves an evidentiary gap.

The uncontroverted evidence establishes only the following facts: (1) that the FOIA

requests were properly addressed and that they, in fact, arrived at one of the “screening

locations” used by EOUSA for processing its mail,

(Hudgins Decl. ¶ 18), and (2) that the

requests were never entered into the EOUSA FOIA logs,

(Hudgins Decl. ¶¶ 19–20). What

12 the Court cannot discern on the present record is whether the requests never made it to

EOUSA—that is, the “component of the agency that is designated in the agency’s regulations

under [FOIA] to receive requests,”

(a)(6)(A)(ii)—or whether they were delivered

to EOUSA but never made it into the EOUSA FOIA log. The fact that two (and perhaps three)

requests that Plaintiff submitted were all lost adds to the mystery and raises questions about the

procedures the Department of Justice and EOUSA employ for purposes of receiving and logging

incoming FOIA requests. Notably, EOUSA offers very little information about what did

happen—or, indeed, even about what might have happened—here. It does not identify who

signed for the mailings, and it did not, as far as the Court can discern, investigate what happened

to the requests, beyond merely concluding that they were never logged. EOUSA also says

nothing about who is responsible for ensuring that mail received at the screening location is

delivered to the appropriate component. Without additional information—and perhaps an

evidentiary hearing—the Court cannot conclude that EOUSA has carried its summary judgment

burden of demonstrating that there is no material issue in dispute.6

Granted, it seems unlikely that EOUSA would have released the information sought by

Plaintiff in Request Nos. 3 and 5, even if those requests had been received; presumably, EOUSA

would have denied the requests on the same grounds that it denied Request No. 4, which sought

the same grand jury materials, albeit for a different indictment number. But EOUSA has not

6 To be sure, Plaintiff’s failure to oppose EOUSA’s motion means that the Court must accept all reasonably supported and uncontroverted facts proffered by EOUSA. Neal v. Kelly,

, 456–57 (D.C. Cir. 1992); Lewis v. Faulkner,

(7th Cir. 1982). But, the only relevant fact that EOUSA proffers is that it lacks a record of receiving the mailings; it does not, and based on the record before the Court, cannot, make the affirmative representation that it never actually received the mailings. Another question not answered by the briefing to date is whether the individual who signed for the mailings served as EOUSA’s agent, such that the requests should be deemed received by EOUSA. 13 argued that a rule akin to the rule of prejudicial error applies under FOIA, and the Court can

decide only the question that is before it based on the record that it is before it. The Court will,

accordingly, deny EOUSA’s motion for summary judgment with respect to Request Nos. 3

and 5.

This, then, leaves Request No. 2. The difficultly with respect to this request is that it was

at least arguably misaddressed, thus providing some explanation for why the request was never

logged. Although that may well explain what happened, the Court will refrain from granting

summary judgment in favor of EOUSA with respect to this claim because, while plausible, this is

not the defense EOUSA has presented, and the Court cannot determine on the present record

whether the address that Plaintiff used was sufficient. It is not the Court’s role, for example, to

search Department of Justice directories to see which office, if any, is located at 600 E Street,

NW, Room 7300. And, again, EOUSA does nothing to address what actually happened to this

mailing, which was apparently signed for by a Department of Justice representative. The Court

will, accordingly, deny EOUSA’s motion for summary judgment with respect to Request No. 2

as well.

C. Request No. 4

Finally, EOUSA claims that “[a]ll of the grand jury materials requested by Plaintiff [in

Request 4] were appropriately deemed exempt by EOUSA” pursuant to FOIA Exemption 3.

Dkt. 20 at 9;

(b)(3). In relevant part, Exemption 3 protects information that is

“specifically exempted from disclosure by statute . . . if that statute . . . requires that the matters

be withheld from the public in such a manner as to leave no discretion on the issue,”

(b)(3). Here, EOUSA claims that Federal Rule of Criminal Procedure 6(e) is a qualifying

statute that shields “‘matter[s] occurring before a grand jury.’” Dkt. 20 at 8 (quoting Labow v.

14 Dep’t of Justice,

(D.C. Cir. 2016)); see also Fed. R. Crim. P. 6(e). The Court

agrees. As the D.C. Circuit has explained, Rule 6(e)’s “ban on disclosure is for FOIA purposes

absolute and” leaves no discretion on the issue. Fund for Const. Gov’t v. Nat’l Archives & Recs.

Serv.,

(D.C. Cir. 1981).

“Consequently, the sole question before [the Court] is whether the documents withheld

from disclosure fall within Rule 6(e).” Labow,

. That question, however,

requires a more detailed, case-specific analysis than the categorial responses offered by EOUSA

and OIP. Instead, to determine whether information related to a grand jury is protected by Rule

6(e) and Exemption 3, the Court must consider “whether disclosure of the information requested

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 or questions of jurors, and the like.’” Lopez v. Dep’t of Justice,

(D.C. Cir. 2005) (quoting Senate of the Commonwealth of Puerto Rico v.

Dep’t of Justice,

(D.C. Cir. 1987)); see also Murphy v. EOUSA,

(D.C. Cir. 2015); Hodge v. FBI,

(D.C. Cir. 2013); 1 Charles Alan Wight

& Arthur R. Miller, Federal Practice and Criminal Procedure § 106 (4th ed. 2020) (hereinafter

Wright & Miller). In addressing this question, moreover, the Court must bear in mind the

justifications for grand jury secrecy—that is:

(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; [and] (5) to protect [an] innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.

15 United States v. John Doe, Inc. I,

, 109 n.5 (1987); In re Grand Jury

Investigation,

(3d Cir. 1990); Wight & Miller § 106.

In Request No. 4, Plaintiff sought: (1) orders reflecting the commencement, termination,

and extensions of the grand jury; (2) transcripts of the instructions and charges given to any

grand jury; (3) “[a]ll [g]rand [j]ury voting records;” and (4) attendance records, “including

names, times, and dates, of all [g]rand [j]urors.” Dkt. 1-1 at 19 (Compl. Ex. 4). “Grand jury

transcripts” are, of course, “the prototypical grand jury material exempt from disclosure under

Rule 6(e)[] and are thus protected from disclosure by Exemption 3.” Borda v. Dep’t of Justice,

Crim. Div.,

(D.D.C. 2018). Similarly, for the attendance records that

Plaintiff seeks, their disclosure would require revealing “‘the identities of . . . jurors,’” which is

also foreclosed by Rule 6(e). See Boyd v. EOUSA,

(D.D.C. 2015) (quoting

SEC v. Dresser Indus., Inc.,

, 1382 (D.C. Cir. 1980)) (discussing the possibility of

revealing juror identities as a benchmark test for whether withholding is appropriate). And,

Plaintiff’s request for grand jury voting records would also require disclosure of core, protected

information. Voting records clearly constitute a “secret aspect” of the grand jury’s investigation

and are thus shielded from disclosure pursuant to Rule 6(e). Lopez,

(internal

quotation marks omitted); see also Liounis v. Dep’t of Justice, No. 17-1621,

,

at *4 (D.D.C. Nov. 7, 2018) (observing that records concerning grand jury and attendance

records would likely be exempt from disclosure), rev’d in part, vacated on other grounds,

Liounis v. Krebs, No. 18-5351,

(D.C. Cir. Dec. 19, 2019); Flores v. EOUSA

Freedom of Info./Priv. Act Unit,

, 16–17 (D.D.C. 2000) (finding grand jury

voting ballots, transcripts, and exhibits exempt from disclosure). For these reasons, the Court

concludes that the information sought by Plaintiff in line items 2–4 of Request No. 4 is subject to

16 Rule 6(e) and that, accordingly, the corresponding records were properly withheld under

Exemption 3. To this extent, EOUSA is entitled to summary judgment.

The Court, however, is unconvinced—at least on the present record—that EOUSA has

shown that it is entitled to summary judgment with respect to the remaining portions of Request

No. 4. Most notably, Plaintiff asked EOUSA to release “orders that reflect the [c]ommencement,

[t]ermination, and any extensions of the [g]rand [juries] that heard evidence in” his case. Dkt. 1-

1 at 19 (Compl. Ex. 4). Unlike the other grand jury information sought by Plaintiff, it is not

immediately evident why such orders would “tend[] to reveal some secret aspect of the grand

jury’s investigation.” Abakporo v. EOUSA, No. 18-846,

, at *2 (D.D.C. Mar.

5, 2019) (quoting Lopez,

). Indeed, in a case much like this one—also brought

by a federal prisoner against EOUSA seeking “records about the dates on which the term of the

grand jury that returned an indictment against him [were] extended”—Judge Kelly granted

summary judgment in favor of the plaintiff on almost the identical question. Id. at *1. As Judge

Kelly explained, in that case, the records at issue “appear[ed] to concern the grand jury’s

administrative procedures, as opposed to the substance of any specific investigation;” EOUSA

offered “no explanation as to how [the] dates [at issue], or the orders reflecting them, would tend

to reveal a secret aspect of the grand jury’s investigation;” and “the limited case law on this

subject does not suggest that the dates a grand jury’s term was extended would tend to reveal a

secret aspect of its investigation.” Id. at *3.

In reaching this conclusion, Judge Kelly relied on the D.C. Circuit’s decision in Murphy

v. EOUSA, yet another FOIA action brought against EOUSA seeking information relating to the

grand jury that indicted the plaintiff. Id. at *3–4 (discussing Murphy,

). In that

case, the court of appeals held that EOUSA properly withheld records reflecting the specific

17 “dates and times of day the grand jury convened to consider” the plaintiff’s case, but only

because, on the facts of that case, the disclosure risked revealing the identity of grand jury

witnesses. Murphy,

. Importantly, however, the D.C. Circuit contrasted the

disclosure of “the dates and times of day the grand jury [met] to consider a specific case,” which

risked disclosure of specific witnesses, with a mere disclosure of “when ‘the grand jury’s work

began and ended,’” which EOUSA had voluntarily released to the plaintiff.

at 212 (quoting

Hill v. Dep’t of Justice, No. 11–273, ECF No. 29, at 8 (D.D.C. Dec. 19, 2011)). Indeed, in the

Murphy case, EOUSA had voluntarily released records reflecting “‘the date on which the grand

jury was convened.’”

.

Even more on point is the Third Circuit’s decision in In re Grand Jury Investigation,

where the court observed “that disclosure of the commencement and termination dates of the

grand jury does not disclose the essence of what took place in the grand jury room,” nor does it

“violate the freedom and integrity of the deliberative process of the grand jurors;” and that none

of the reasons that the Supreme Court has identified for maintaining grand jury secrecy—which

are described above—“weighs against disclosure of the termination date.” 903 F.2d at 182–83.

Indeed, at least as of 1990, “the vast majority of United States District Courts” revealed “the

commencement and termination dates of the[ir] grand jur[ies] [as] matters of public record.” Id.

at 184. The Third Circuit, accordingly, held that Rule 6(e) did not preclude disclosure of the

termination date for the grand jury at issue. Id. at 185. Although In re Grand Jury Investigation

did not involve FOIA, the relevant question for present circumstances is the scope of protection

under Rule 6(e), which is controlling here for purposes of Exemption 3. Labow,

(defining the operative question in such situations as whether the materials withheld pursuant to

Exemption 3 fell within Rule 6(e)).

18 To be sure, the discussion of commencement and termination dates in Murphy was dicta,

since EOUSA had voluntarily released that information, and In re Grand Jury Investigation is an

out-of-circuit precedent. But a clear picture nonetheless emerges from the text of Rule 6(e)

itself—which protects matters relating to a grand jury only to the extent “necessary to prevent

the unauthorized disclosure of a matter occurring before a grand jury,” Fed. R. Crim. P. 6(e)(6)

(emphasis added); from these precedents; and from other precedents: records that disclose the

commencement and termination dates for grand juries are protected from disclosure, if at all,

only when disclosure risks revealing the substantive work of the grand jury, including the

identity of grand jury witnesses or the details of a specific grand jury investigation.

Here, Plaintiff sought orders reflecting the commencement, extension, and termination of

the specified grand juries. EOUSA, in turn, offers no justification for withholding those records,

beyond its categorical assertion of protection under Rule 6(e). Dkt. 20 at 9. This broad reliance

on Rule 6(e), particularly in light of EOUSA’s release of similar records in the past, is

insufficient. In short, the Court is left to wonder how, if at all, disclosure of those records would

“reveal some secret aspect of the grand jury’s investigation.” Lopez,

(internal

quotation marks omitted). This does not mean, however, that Plaintiff is entitled to summary

judgment with respect to these records for two reasons. First, he has not cross-moved for

summary judgment. And, second, it is possible that EOUSA may have some (yet-to-be-voiced)

rationale for withholding even this limited range of records relating to the grand juries. If so,

however, EOUSA needs to offer a declaration or other evidence explaining why 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 or questions of jurors, and the like.”

19 Finally, EOUSA’s motion also falls short because it neglects altogether Plaintiff’s request

for “a copy of the applicable rules and regulations” of EOUSA “as provided for the FOIA/PA

Acts.” Dkt. 1-1 at 19 (Compl. Ex. 4); see also Dkt. 25-1 at 13–17 (Hudgins Decl. Ex. C, D). It

is not entirely clear what Plaintiff is seeking or that he is entitled to it. But absent any argument

from EOUSA, the Court cannot grant summary judgment in its favor of this unaddressed issue.

In sum, the Court will grant summary judgment in favor of EOUSA on Request No. 4 as

to withholding line items 2–4 of Plaintiff’s request but will deny summary judgment without

prejudice as to withholding orders, if any, relating to the commencement, termination, or

extension of the grand jury and the regulations sought by Plaintiff in that request. Although the

Court has already denied summary judgment on other grounds as to Request Nos. 3 and 5, the

Court notes that those requests raise the same issues, and similar withholdings would, absent

further explanation from EOUSA, likewise fail.

CONCLUSION

The Court, accordingly, GRANTS EOUSA’s motion for summary judgment, Dkt. 20, as

to Request No. 1, and as to all of the grand jury materials in Request No. 4, except orders

relating to the commencement, termination, and extensions of the grand jury. In all other

respects, the Court DENIES EOUSA’s motion.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: March 25, 2021

20