Toensing v. United States Department of Justice , 999 F. Supp. 2d 50 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VICTORIA TOENSING, et al.
Plaintiffs,
Civil Action No. 11-1215 (BAH)
v.
Judge Beryl A. Howell
UNITED STATES
DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION
The plaintiffs, Victoria Toensing and Joseph diGenova (“the plaintiffs”), have spent more
than six years attempting to obtain records under the Freedom of Information Act, 5 U.S.C. §
552, pertaining to grand jury subpoenas issued to them in 2003. Pending before the Court are the
plaintiffs’ and the defendant Department of Justice’s (“the defendant”) second round of cross
motions for summary judgment, ECF Nos. 29 and 31. For the reasons set forth below, the
defendant’s motion is granted and the plaintiffs’ motion is denied.
I. BACKGROUND
The factual history of this case has been laid out in detail in this Court’s prior
Memorandum Opinion and need not be repeated here. See Toensing v. U.S. Dep’t of Justice, 890
F. Supp. 2d 121, 124–130 (D.D.C. 2012). The facts and procedural history pertinent to the
instant motions are as follows. In Toensing, the defendant was ordered to perform a
supplementary search for records responsive to the plaintiffs’ FOIA request of June 19, 2007,
submitted to the Executive Office of the United States Attorney (“EOUSA”). See id. at 149.
This request sought the following categories of records: (1) “The subpoena of Joseph diGenova
and/or Victoria Toensing to testify against their client, Thomas P. Gordon, including but not
1
limited to all memoranda related to such requests and meeting notes;” (2) “All responses and
internal memoranda regarding such requests to subpoena diGenova and/or Toensing, including e-
mails and any other electronic communication; and” (3) “All calendar entries regarding requests
or decisions to subpoena diGenova and/or Toensing.” Id. at 126. The request pertains to an
investigation initiated by then-U.S. Attorney for the District of Delaware Colm Connolly, in
which the plaintiffs allege they were improperly and surreptitiously tape recorded and
subpoenaed to appear before a grand jury in an effort to compel their disqualification from
representing one of their clients. See Pls.’ Mem. Supp. Renewed Cross-Mot. Summ. J. & Opp’n
Def.’s Suppl. Mot. Summ. J. (“Pls.’ Mem.”) at 3–6, ECF No. 31-2; Toensing, 890 F. Supp. 2d at
125–26.
A supplementary search pertaining to the plaintiffs’ request was ordered because “in
conducting the 2007 EOUSA search, [Connolly] was instructed by the EOUSA not to forward
six categories of documents in response to the plaintiffs’ request.” Toensing, 890 F. Supp. 2d at
126. “The six categories included (1) drafts of papers filed with the DOJ’s Office of
Professional Responsibility, (2) drafts of Mr. Connolly’s responses to a Senate Questionnaire, (3)
grand jury records, (4) court filings submitted under seal, (5) drafts of court filings submitted
under seal or submitted ex parte, and (6) duplicate documents.” Id. at 126 n.2. The Court noted
that the “defendant is perhaps justified in inferring that these six categories of documents would
be categorically exempt from production under one of more FOIA exemptions, but the fact that a
category of documents is likely to be exempt from disclosure does not allow an agency to
preemptively exclude such a category of documents from its search.” Id. at 147. Nevertheless,
the defendant admitted that these categories of records “were not searched,” thereby making the
2
defendant’s search for records responsive to the plaintiff’s 2007 request inadequate under the
FOIA. See id. at 147–48.
The supplementary search yielded “six additional responsive records,” all of which are
detailed in a supplemental Vaughn index submitted by the defendant, and withheld in full under
FOIA Exemption 3 and in part under Exemption 7(C), 5 U.S.C. §§ 552(b)(3), (b)(7)(C). See
Suppl. Decl. of John F. Boseker, Attorney Advisor, EOUSA (“Suppl. Boseker Decl.”) at 1 and
Attach. 1 (“Suppl. Vaughn Index”), ECF No. 29-2. All but Document Six are also being
withheld in full under Exemption 5, 5 U.S.C. §§ 552(b)(5). See id. Following this
supplementary search, the plaintiff dropped its challenge to the adequacy of the search but now
challenges the withholding in full of the six documents, totaling 174 pages, yielded by the
search. See Joint Report ¶ 3, ECF No. 28; Suppl. Vaughn Index at 1–2.
Document One is an intra-agency email from one Department of Justice (“DOJ”) attorney
to another that “references review and comment and continuing process of legal evaluation.”
Suppl. Vaughn Index at 1. The document is withheld in full under Exemptions 3 and 5, with
portions also withheld under Exemption 7(C). Id.Documents Two, Three, and Five are intra-agency memoranda that discuss, inter alia, the
authorization of issuing subpoenas to the plaintiffs. Id. at 1–2. The three documents were
authored by DOJ attorneys and discuss legal analysis as well as grand jury proceedings. Id.Each document is being withheld in full under Exemptions 3 and 5, with portions also withheld
under Exemption 7(C). Id.Document Four is a draft “of an ex parte affidavit to be submitted with Government’s
Answer to motion to quash” the subpoenas to the plaintiffs. Id. at 2. The document is withheld
3
in full under Exemption 3 and Exemption 5, with portions also withheld under Exemption 7(C).
Id.Document Six is a sealed court filing “that discussed the grand jury investigation in
detail.” Id. “The substance of the filing concerns matters occurring before the grand jury, and
has attachments supporting the sealed filing.” Id. The document is withheld in full under
Exemption 3, with portions withheld under Exemption 7(C).
Both parties have moved for summary judgment and supplemented their motions with
additional declarations. See Def.’s Suppl. Mot. Summ. J., ECF No. 29; Pl.’s Cross Mot. for
Summ J., ECF No. 31. These motions are now ripe for decision.
II. LEGAL STANDARD
A. FOIA
The FOIA requires federal agencies to release all non-exempt agency records responsive
to a request for production. See 5 U.S.C. § 552(a)(3)(A). Federal courts are authorized under the
FOIA “to enjoin the agency from withholding agency records and to order the production of any
agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B).
To protect “legitimate governmental and private interests [that] could be harmed by
release of certain types of information,” United Techs. Corp. v. U.S. Dep’t of Def., 601 F.3d 557,
559 (D.C. Cir. 2010) (internal quotation marks omitted), Congress included nine exemptions
permitting agencies to withhold information from FOIA disclosure. See 5 U.S.C. § 552(b).
“These exemptions are explicitly made exclusive, and must be narrowly construed.” Milner v.
U.S. Dep’t of the Navy, 131 S. Ct. 1259, 1262 (2011) (citations and internal quotation marks
omitted); see also Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir.
2010) (“FOIA allows agencies to withhold only those documents that fall under one of nine
specific exemptions, which are construed narrowly in keeping with FOIA’s presumption in favor
4
of disclosure.”) (citations omitted). When a FOIA requester properly exhausts its administrative
remedies, it may file a civil action challenging an agency’s response to its request. See 5 U.S.C.
§ 552(a)(4)(B); Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). Once such an action is filed,
the agency generally has the burden of demonstrating that its response to the plaintiff’s FOIA
request was appropriate. See id. at 678.
B. Summary Judgment
It is typically appropriate to resolve FOIA cases on summary judgment. See Brayton v.
Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011) (“the vast majority of FOIA
cases can be resolved on summary judgment”). When an agency’s response to a FOIA request is
to withhold responsive records, either in whole or in part, the agency “bears the burden of
proving the applicability of claimed exemptions.” Am. Civil Liberties Union v. U.S. Dep’t of
Def. (“ACLU/DOD”), 628 F.3d 612, 619 (D.C. Cir. 2011). The government may sustain its
burden of establishing that requested records were appropriately withheld through the
submission of declarations detailing the reason that a FOIA exemption applies, along with an
index, as necessary, describing the materials withheld. See, e.g., ACLU/DOD, 628 F.3d at 619;
Students Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 840 (D.C. Cir. 2001); Vaughn v.
Rosen, 484 F.2d 820, 827–28 (D.C. Cir. 1973). “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/DOD, 628 F.3d at 619. As the D.C.
Circuit recently explained, in FOIA cases “‘[s]ummary judgment may be granted on the basis of
agency affidavits if they contain reasonable specificity of detail rather than merely conclusory
statements, and if they are not called into question by contradictory evidence in the record or by
5
evidence of agency bad faith.’” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215
(D.C. Cir. 2013) (quoting Consumer Fed’n of Am. v. U.S. Dep’t of Agric., 455 F.3d 283, 287
(D.C. Cir. 2006) and Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994)). While the burden
remains on the moving party to demonstrate that there is an “absence of a genuine issue of
material fact” in dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), in FOIA cases, “an
agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or
‘plausible.’” ACLU/DOD, 628 F.3d at 619 (quoting Larson v. Dep’t of State, 565 F.3d 857, 862
(D.C. Cir. 2009)).
III. DISCUSSION
The defendant is withholding in full six responsive documents found in the
supplementary search under FOIA Exemption 3, which prohibits disclosure of grand jury
protected material under Federal Rule of Criminal Procedure 6(e), and in part under FOIA
Exemption 7(C) as documents “compiled for law enforcement purposes . . . to the extent that the
production of such law enforcement records or information could reasonably be expected to
constitute an unwarranted invasion of personal privacy.” See 5 U.S.C. §§ 552(b)(3), (b)(7)(C);
Suppl. Vaughn Index. Documents One through Five are also being withheld in full pursuant to
FOIA Exemption 5, as privileged attorney work product and protected by the deliberative
process privilege. See 5 U.S.C. § 552(b)(5); Suppl. Vaughn Index. Since Documents One
through Five are properly withheld under the attorney work product privilege encompassed by
Exemption 5, it is unnecessary to review the defendant’s other grounds for withholding those
documents. Similarly, Document Six is properly withheld under Exemption 3, which makes
discussion of this document’s withholding under Exemption 7(C) unnecessary.
6
A. Withholdings Under Exemption 5 (Documents 1-5)
Under Exemption 5, agencies are not required to disclose in response to a FOIA request
“matters that are . . . inter-agency or intra-agency memorandums or letters which would not be
available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. §
552(b)(5). Two conditions must be met for a record to qualify for this exemption and be
withheld: “its source must be a Government agency, and it must fall within the ambit of a
privilege against discovery under judicial standards that would govern litigation against the
agency that holds it.” U.S. Dep’t of Interior v. Klamath Water Users Protective Ass’n (“Klamath
Water”), 532 U.S. 1, 8 (2001); see also Nat’l Inst. of Military Justice v. Dep’t of Defense, 512
F.3d 677, 680, 680 n.4 (D.C. Cir. 2008) (noting records withheld under Exemption 5 must be
inter- or intra-agency records “‘unavailable by law’ under one of the established civil discovery
privileges.”). The Supreme Court has explained that “the first condition of Exemption 5 is no
less important than the second; the communication must be ‘inter-agency or intra-agency.’”
Klamath Water, 532 U.S. at 9. In the instant case, neither party disputes that Documents One
through Five are “inter-agency or intra-agency memorandums,” nor does the supplemental
Vaughn index indicate otherwise. See Suppl. Vaughn Index at 1–2. The only dispute, therefore,
is whether these five documents are properly withheld under a “privilege against discovery.”
The second condition incorporates those civil discovery privileges enjoyed by any private
party in litigation, including the attorney-client and attorney work product privileges. See
Klamath Water, 532 U.S. at 8; NLRB v. Sears, Roebuck & Co. (“Sears”), 421 U.S. 132, 149
(1975); Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006);
Rockwell Int’l Corp. v. U.S. Dep’t of Justice, 235 F.3d 598, 601 (D.C. Cir. 2001). Nevertheless,
“[i]n keeping with the Act’s policy of the fullest responsible disclosure . . . Congress intended
Exemption 5 to be as narrow as is consistent with efficient Government operations.” FTC v.
7
Grolier, Inc., 462 U.S. 19, 23 (1983); see also Sears, 421 U.S. at 149 (“[I]t is reasonable to
construe Exemption 5 to exempt those documents, and only those documents, normally
privileged in the civil discovery context.”); Coastal States Gas Corp. v. U.S. Dep’t of Energy
(“Coastal States”), 617 F.2d 854, 862 (D.C. Cir. 1980) (“The clear purpose of FOIA is to assure
that the public has access to all government documents, subject to only nine specific limitations,
to be narrowly interpreted.”).
The starting place for evaluating the scope of the attorney work product doctrine is
Federal Rule of Civil Procedure 26(b)(3), which protects “ordinarily,” those “documents and
tangible things that are prepared in anticipation of litigation or for trial by or for another party or
its representative . . .” FED. R. CIV. P. 26(b)(3)(A). As the Supreme Court explained, “[i]t makes
little difference whether a privilege is absolute or qualified in determining how it translates into a
discrete category of documents that Congress intended to exempt from disclosure under
Exemption 5. Whether its immunity from discovery is absolute or qualified, a protected
document cannot be said to be subject to ‘routine’ disclosure.” Grolier, 462 U.S. at 28. For
purposes of withholding FOIA requested records, the “test under Exemption 5 is whether the
documents would be ‘routinely’ or ‘normally’ disclosed upon a showing of relevance.” Id. at 26(quoting Sears, 421 U.S. at 148-149); see also Williams & Connolly v. SEC, 662 F.3d 1240,
1243 (D.C. Cir. 2011) (“Although work product protection may be overcome for cause in civil
cases . . . any materials disclosed for cause are not ‘routinely’ or ‘normally’ discoverable and, for
that reason, are exempt under FOIA.”) (citation omitted); Stonehill v. IRS, 558 F.3d 534, 538-539
(D.C. Cir. 2009) (noting that “not all documents available in discovery are also available
pursuant to FOIA” since “case-specific exceptions can sometimes permit discovery of otherwise
privileged material”); Lardner v. U.S. Dep’t of Justice, No. Civ.A.03-0180, 2005 U.S. Dist.
8
LEXIS 5465, at *6 (D.D.C. Mar. 31, 2005) (citing the “divide between the rules of FOIA and
civil discovery,” and noting that “[t]here will be many cases in which a document should be
withheld under Exemption 5 of FOIA because it falls ‘within the ambit’ of a privilege, but the
document nonetheless would be discoverable in certain circumstances in civil litigation”).
In applying the work product doctrine, the D.C. Circuit has instructed that, it “should be
interpreted broadly and held largely inviolate.” Judicial Watch v. U.S. Dep’t of Justice, 432 F.3d
366, 369 (D.C. Cir. 2005). This is consistent with the policy underpinnings articulated by the
Supreme Court that “it is essential that a lawyer work with a certain degree of privacy, free from
unnecessary intrusion by opposing parties and their counsel.” Hickman v. Taylor, 329 U.S. 495,
510 (1947). The work product doctrine can apply to preparatory work performed not only by
attorneys, but also, in some circumstances by nonlawyers, United States v. Nobles, 422 U.S. 225,
238-239 (1975), and “does not distinguish between factual and deliberative material,” Martin v.
Office of Special Counsel, 819 F.2d 1181, 1187 (D.C. Cir. 1987). This is because, in the context
of work product, the risk is apparent that an attorney’s discussion of factual matters may reveal
his or her tactical or strategic thoughts. See Mervin v. FTC, 591 F.2d 821, 825–26 (D.C. Cir.
1978) (noting that “even the factual material segregated from attorney work-product is likely to
reveal some of the attorney’s tactical and strategic thoughts” and that while “pure statements of
fact” are not exempt “from disclosure by calling them attorney work-product . . . material which
might disclose an attorney’s appraisal of factual evidence is attorney work-product exempted
from disclosure by exemption 5”). Thus, “[a]ny part of [a document] prepared in anticipation of
litigation, not just the portions concerning opinions, legal theories, and the like, is protected by
the work product doctrine and falls under exemption 5.” Tax Analysts v. IRS, 117 F.3d 607, 620
(D.C. Cir. 1997); see also Judicial Watch, Inc. v. U.S. Dep’t of Justice, 800 F. Supp. 2d 202, 211
9
n.7 (D.D.C. 2011) (holding that distinction between “fact” work product and “opinion” work
product does not apply in FOIA context since protection of Exemption 5 extends to both).
The defendant asserts that Documents One through Five are properly withheld as attorney
work product because they “reflect such matters as trial preparation, trial strategy, legal
interpretations, and personal evaluations and opinions by Assistant United States Attorneys and
the United States Attorney pertinent to grand jury investigation and subpoenas relating to a third
party criminal case.” Decl. of John F. Boseker, Atty. Advisor, EOUSA, ¶ 52 (“Boseker Decl.”),
ECF No. 12-1; Suppl. Boseker Decl. ¶ 1–2. The description of each document confirms that
they were prepared “in anticipation of litigation” and were authored by DOJ Attorneys. See
Suppl. Vaughn Index at 1–2. For instance, the description of Document One indicates that the
document is “an intra-agency email discussing the request for authorization to subpoena
Plaintiffs and legal analysis regarding the grand jury subpoena’s issuance.” Id. Each of the other
document descriptions for Documents Two through Five indicates that they, too, are inter- or
intra-agency memoranda that contain legal analysis and attorney opinions. See id.The plaintiffs’ primary objection to the defendant’s withholding is premised on alleged
misconduct committed by the U.S. Attorney’s office and that office’s alleged failure to follow
DOJ guidelines. See Pls.’ Mem. at 17–18, ECF No. 31–2; Decl. of Victoria Toensing
(“Toensing Decl.”) (Feb. 27, 2012) ¶¶ 45–46, ECF No. 31–4. 1 The plaintiffs detail the practices
they believe constitute misconduct, including the attempted tape recording of Plaintiff Toensing,
see Pls.’ Mem. at 4, attempts to intimidate and disqualify the plaintiffs, see Pls.’ Mem. at 5–6,
1
The plaintiffs also submitted a declaration from Hamilton P. Fox, III, another attorney involved in the litigation
that gave rise to the original subpoenas, to bolster their view of the U.S. Attorney’s alleged misconduct, since Fox
was also disqualified from representing a long-standing client, who was subject to the grand jury investigation. See
Decl. of Hamilton P. Fox, III (“Fox Decl.”) ¶¶ 6, 10, ECF No. 31–3. This declaration does not, however, provide
additional information about the propriety of the various exemptions claimed by the defendant and, as such, need not
be discussed further.
10
and grand jury subpoenas for information pertaining to the plaintiffs’ client, see id. While
attorney misconduct or unprofessional behavior may vitiate the work product doctrine in some
circumstances, see In re Sealed Case, 107 F.3d 46, 51 (D.C. Cir. 1997) (“[I]nterests in favor of
work product immunity are overcome when the client uses the attorney to further a crime or
fraud.”), in the FOIA context, such an argument is unavailing. As the defendant points out, after
Grolier, 462 U.S. at 28, courts need not consider whether certain documents might be
discoverable “in any particular litigation” before determining if the documents may be withheld
under Exemption 5. Rather, courts must determine if “the documents would be ‘routinely’ or
‘normally’ disclosed upon a showing of relevance.” Id. at 26. Quite simply, whether the people
who created these documents engaged in some misconduct or failed to comply with Department
of Justice guidelines is irrelevant to determining whether the documents are appropriately
withheld under Exemption 5, since exceptions to discovery privileges are not properly
considered under Exemption 5. Id.Indeed, the defendant makes a strong argument on this score in its reply when it notes
that “[t]his case illustrates the wisdom of having such a ‘workable’ rule to govern work product
protection in FOIA cases.” Def.’s Reply Supp. Def.’s Mot. Summ. J. & Mem. Opp’n Pls.’ Mot.
Summ. J. (“Def.’s Reply”) at 10, ECF No. 32. If the Court were required to consider the
applicability of any possible exception to privileges asserted under Exemption 5, the result would
be protracted FOIA litigation in which the parties would have to brief, with evidentiary support,
myriad counter-factuals to determine whether a conceivable set of facts exist to overcome the
privilege. This would essentially require an examination of facts specific to the challenge to the
assertion of the privilege in order to resolve application of Exemption 5 in a FOIA case. It was
exactly this result about which the Supreme Court expressed concern in Grolier and which it
11
categorically rejected. See Grolier, 462 U.S. at 28. “Only by construing the exemption to
provide a categorical rule can the [FOIA’s] purpose of expediting disclosure by means of
workable rules be furthered.” Id.The plaintiffs rely upon Moody v. IRS, 654 F.2d 795, 800 (D.C. Cir. 1981), a case that
pre-dates Grolier, to bolster their argument that exceptions to the attorney work product privilege
should apply to the invocation of the privilege under Exemption 5 in the FOIA context. See Pls.’
Mem. at 18.; Pls.’ Reply to Def.’s Reply Supp. Mot. Summ. J. & Opp’n to Pls.’ Cross-Mot.
Summ. J. (“Pls.’ Reply”) at 9, ECF No. 35. Moody is an excellent example of what the Supreme
Court was attempting to prevent with Grolier. In Moody, the FOIA requestor challenged the
withholding under Exemption 5’s work product doctrine of a responsive document on grounds
that the document was “the fruit of impermissible legal conduct,” arguing that before application
of the doctrine to “cover-up” the allegedly unprofessional activities a determination had to be
made “whether the actions of the [government] attorney in fact violated professional standards.”
Moody, 654 F.2d at 799-800. The D.C. Circuit agreed and remanded the case to the district court
with instructions to conduct “an evaluation of the attorney’s conduct and, if it is found in
violation of professional standards, a determination of whether his breach of professional
standards vitiated the work product privilege otherwise attributable” to one of the documents at
issue. Id. at 801.
Thus, Moody demonstrated the accuracy of the Supreme Court’s animating concern in
Grolier that “[t]he logical result of [the plaintiffs’] position is that whenever work-product
documents would be discoverable in any particular litigation, they must be disclosed to anyone
under the FOIA.” Grolier, 462 U.S. at 28. The Court explained that “[i]t is not difficult to
imagine litigation in which one party’s need for otherwise privileged documents would be
12
sufficient to override the privilege but that does not remove the documents from the category of
the normally privileged.” Id. (emphasis in original). 2 Thus, in the instant case, even if
misconduct occurred in the U.S. Attorney’s office pertaining to the plaintiffs’ subpoenas, such
misconduct cannot vitiate the attorney work product privilege for the purposes of the FOIA.
The plaintiff also argues that the supplemental Vaughn index is insufficient to determine
whether the documents listed are subject to the attorney work product privilege. See Pls.’ Reply
at 7. The plaintiffs contend that the supplemental Vaughn index does not include “dates of the
documents” or the names of the documents’ authors, and that the “[d]escriptions of the
documents . . . are nothing more than cut, pasted, and edited boilerplate for each of the six (6)
documents.” Id. at 4. This argument, too, is unavailing. It is true that the Vaughn index is
sparse in the details regarding the names of the documents’ authors and recipients, as well as the
dates when those documents were created. See Suppl. Vaughn Index at 1–2. Nevertheless, a
Vaughn index need only “indicate[] in some descriptive way which documents the agency is
withholding and which FOIA exemption it believes apply.” ACLU v. CIA, 710 F.3d 422, 432
(D.C. Cir. 2013). The D.C. Circuit has made it clear that “a Vaughn index may also contain brief
or categorical descriptions when necessary to prevent the litigation process from revealing the
very information the agency hopes to protect.” Id. (citing Judicial Watch, Inc. v. FDA, 449 F.3d
141, 146 (D.C. Cir. 2006). All that is necessary is a Vaughn index that is “‘sufficiently distinct
to allow a court to determine . . . whether the specific claimed exemptions are properly applied.’”
2
The plaintiffs contend that the D.C. Circuit opinion in Grolier supports their position and that Moody was not
abrogated by Grolier, noting that, on one of Moody’s return trips to the D.C. Circuit, the case was remanded with
instructions to “determine if Grolier actually applied to the facts of [Moody]” and if “‘Grolier does not apply, [the
district court] should reconsider whether [] conduct may have vitiated the work product privilege.’” Pls.’ Reply at
10 n.7. The D.C. Circuit opinion in Grolier on which the plaintiffs rely was reversed by the Supreme Court. See
Grolier, 462 U.S. at 28.
13
Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994) (quoting Vaughn v. United States, 936 F.2d
862, 868 (6th Cir. 1991)).
In the instant matter, the dates of the documents and the names of their authors are
irrelevant to a determination of whether the documents are protected as attorney work product.
Each document is identified as having been prepared by Department of Justice attorneys and
each document’s description adequately explains the nature of the document and why it is
subject to the privilege. Thus, the defendant has shown, based on the supplemental Vaughn
index provided, that Documents One through Five would be shielded as attorney work product in
civil litigation, barring vitiation due to an exception or other circumstances, and, as such, are
exempt from disclosure under the FOIA.
B. Withholding Under Exemption 3 (Document 6)
The FOIA’s Exemption 3 applies to agency records “specifically exempted from
disclosure by statute . . . if that statute (A)(i) requires that the matters be withheld from the public
in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for
withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). For
the purposes of this section, Federal Rule of Criminal Procedure 6(e), which prohibits the release
of material that “would ‘tend to reveal some secret aspect of the grand jury’s investigation,’
including ‘the identities of witnesses or jurors, the substance of testimony, the strategy or
direction of the investigation,’ or ‘the deliberations or questions of jurors,’” is a “statute.” See
Hodge v. FBI, 703 F.3d 575, 580 (D.C. Cir. 2013) (quoting Senate of the Commonwealth of P.R.
v. U.S. Dep’t of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987)). If an agency’s “explanation shows
that the material is covered by Rule 6(e), the material is in turn covered by Exemption 3.” Id.In the instant matter, Document Six “discusses the grand jury investigation [related to the
plaintiffs’ FOIA request] in detail. The substance of the filing concerns matters occurring before
14
the grand jury, and has attachments supporting the [judicially] sealed filing.” Suppl. Vaughn
Index at 2. The plaintiffs argue that since this document pertains to a grand jury subpoena that
has been made public, including during extensive litigation over the plaintiffs’ motion to quash,
Document Six would not reveal any secret aspect of grand jury deliberations. See Pls.’ Reply at
5. Moreover, the plaintiffs argue that “[t]he decision to subpoena counsel, where made based on
false statements and carried out in violation of the DOJ Guidelines, should not be protected by
FOIA exemptions.” Id.The plaintiffs’ belief that they were wrongly subpoenaed is simply irrelevant to the
applicability of exemptions under the FOIA. A sealed court filing that “discussed the grand jury
investigation in detail” would clearly “tend to reveal some secret aspect of the grand jury’s
investigation.” See Hodge, 703 F.3d at 580. If taken to its logical conclusion, the plaintiffs’
argument would allow the release, under the FOIA, of grand jury records pertaining to an
indictment or grand jury subpoena as soon as either such document was made public, a result not
sanctioned under the limited disclosure exceptions set out in Federal Rule of Criminal Procedure
6(e)(3). See FED. R. CR. P. 6(e)(3) (enumerating limited circumstances under which grand jury
information may be released). As such, Document Six is properly withheld as prohibited from
disclosure under Rule 6(e) and, consequently, exempt from disclosure under FOIA Exemption 3.
C. The Withheld Documents Are Not Reasonably Segregable
The defendant has averred that all of the withheld documents are not reasonably
segregable and must be withheld in full. See Suppl. Vaughn Index at 1–2. In the FOIA context
“[i]f a document is fully protected as work product, then segregability is not required.” Judicial
Watch, Inc. v. U.S. Dep’t of Justice, 432 F.3d 366, 371 (D.C. Cir. 2005). Since Documents One
through Five are properly withheld as attorney work product, it is unnecessary to further consider
their segregability. As for Document Six, it is clear from the supplemental Vaughn index that the
15
substance of the document concerns matters protected by Federal Rule of Criminal Procedure
6(e), thus supporting the defendant’s assertion that this document is not segregable. See Suppl
Vaughn Index at 2.
The plaintiffs request that this Court review the disputed documents in camera before
ruling on either party’s Motion for Summary Judgment. Pls.’ Mem. at 18–19. Since the
supplemental Vaughn index is sufficiently clear to show that the six documents are properly
withheld, such a review is unnecessary.
IV. CONCLUSION
For the foregoing reasons, the defendant’s Supplemental Motion for Summary Judgment,
ECF No. 29, is granted and the plaintiffs’ Cross Motion for Summary Judgment, ECF No. 31, is
denied.
An appropriate Order accompanies this Memorandum Opinion.
Digitally signed by Beryl A. Howell
DN: cn=Beryl A. Howell, o=District
Date: November 14, 2013 Court for the District of Columbia,
ou=District Court Judge,
email=howell_chambers@dcd.usc
ourts.gov, c=US
__________________________
Date: 2013.11.14 14:19:46 -05'00'
BERYL A. HOWELL
United States District Judge
16