TIGAR & BUFFONE v. UNITED STATES DOJ

The opinion of the court was delivered by: PARKER

MEMORANDUM OPINION

 BARRINGTON D. PARKER, District Judge.

 This is an action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Plaintiff, the law firm of Tigar & Buffone, seeks from the defendant, the Department of Justice (DOJ), documents relating to the Bahamian bank known as "Castle Bank" which the DOJ is currently investigating for possible criminal tax violations. On September 30, 1983, the Court issued a Memorandum Opinion granting the plaintiff much of the relief it requested in its Motion for a Further Search and Indexing and Cross Motion for Partial Summary Judgment. Subsequently, on November 30, 1983, the DOJ filed a Motion for Reconsideration.

 A very large portion, if not all, of the documents sought from the DOJ by plaintiff were subpoenaed by a federal grand jury sitting in the Southern District of Florida (Miami), and are now impounded in the custody of the DOJ pursuant to an order of the District Court for the Southern District of Florida. In the September 30, 1983, Memorandum Opinion, this Court held that those documents constitute improperly withheld agency (DOJ) records which, for the most part, are subject to disclosure.

 The Court now reconsiders its ruling, grants the DOJ's motion for reconsideration, and finds that the documents subpoenaed by the grand jury and impounded by the district court sitting in Miami are exempt from disclosure in their entirety. Specifically, the Court now holds that those documents are exempt from disclosure because they are not "agency records" under section 552(a)(4)(B) of FOIA, and, in addition, are exempt from disclosure under exemption (b)(3), 5 U.S.C. § 552(b)(3), in conjunction with Fed.R.Crim.P. 6(e).

 Agency Records

 With its motion for reconsideration, the DOJ filed the affidavit of Bernard S. Bailor, formerly the trial attorney with the DOJ responsible for supervising the grand jury investigation pertaining to the records sought here. That affidavit provides new information requiring a change in the Court's conclusion; the Court now holds that the impounded documents are nondisclosable grand jury records rather than disclosable "agency records."

 The Bailor affidavit describes the circumstances surrounding the issuance of the impoundment order. Shortly after Mr. Bailor was assigned to the grand jury, a series of motions were filed, *fn1" raising the issue of possible abuse by the DOJ of the grand jury process. The motions alleged that the government was conducting the grand jury for the improper purpose of assisting the Internal Revenue Service in civil rather than criminal tax investigations. Consequently, one party, the Bank of Perrine, moved the court in Florida to vacate at least four disclosure orders previously issued by that court pursuant to Fed.R.Crim.P. 6(e). The court in the Southern District of Florida held a hearing on those motions in January 1976. As a result of the hearing, the DOJ prepared an order designed to meet the objections raised, circulated the order among the counsel for the movants who made changes, and then submitted the proposed order to the court in Florida, which signed it on January 13, 1976. That order, in addition to impounding the documents in the custody of those DOJ attorneys authorized to conduct the grand jury proceedings, also vacated the four disclosure orders, limited the use of the documents to the grand jury investigation, restricted access to DOJ attorneys, and provided that the "government attorneys shall return all or any of the said impounded documents to the jurisdiction of this Court [i.e., the Southern District of Florida] upon notice from this Court."

 That order has remained in effect, except for some minor amendments issued by the court in Florida at the request of the DOJ, permitting the government to move the documents to various other rooms within the same building.

 In light of this new information, the Court must decide whether the impoundment order had the effect of converting the documents from "grand jury records" to "DOJ records." Under FOIA, only "agency" records are disclosable. Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150, 100 S. Ct. 960, 968, 63 L. Ed. 2d 267 (1980). The DOJ is concededly an agency for purposes of disclosure under FOIA. In contrast, a grand jury is an arm of the judiciary, see, e.g., Levine v. United States, 362 U.S. 610, 617, 80 S. Ct. 1038, 1043, 4 L. Ed. 2d 989 (1960), which is not an agency subject to FOIA's disclosure provisions. See 5 U.S.C. § 552(e); McGehee v. CIA, 225 U.S. App. D.C. 205, 697 F.2d 1095, 1107 (D.C.Cir.1983); Carson v. U.S. Department of Justice, 203 U.S. App. D.C. 426, 631 F.2d 1008, 1009 (D.C.Cir.1980). The Bailor affidavit and recent case law makes clear that the impoundment order did not transform the documents from grand jury records to DOJ records; even after the order they remain grand jury records and are consequently immune from disclosure.

 As this Court recognized in its Memorandum Opinion, simple physical possession by an agency -- such as the DOJ -- of records does not necessarily render them agency records. Slip op. at 5. Rather an agency must either create or obtain the records before the records become "agency records" for purposes of FOIA. Forsham v. Harris, 445 U.S. 169, 182, 100 S. Ct. 977, 985, 63 L. Ed. 2d 293 (1980). Since the DOJ did not create the documents sought here, they become DOJ documents only if the DOJ "obtained" them. To determine whether the DOJ "obtained" the documents, the Court must examine two aspects relating to the control of the documents: first, the extent to which the grand jury and the court in Florida manifested any intent to retain control over them. See Paisley v. CIA, 229 U.S. App. D.C. 372, 712 F.2d 686, 692-93 (D.C.Cir.1983), vacated in nonrelevant part, 233 U.S. App. D.C. 69, 724 F.2d 201 (D.C.Cir.1984); Goland v. CIA, 197 U.S. App. D.C. 25, 607 F.2d 339, 346-47 (D.C.Cir.1978), vacated in nonrelevant part, 607 F.2d 367 (D.C.Cir.1979), cert. denied, 445 U.S. 927, 100 S. Ct. 1312, 63 L. Ed. 2d 759 (1980). Second, the extent to which the DOJ has actually exercised any control. Paisley, 712 F.2d at 693-94. See Wolfe v. Department of Health and Human Services, 229 U.S. App. D.C. 149, 711 F.2d 1077, 1079 (D.C.Cir.1983).

 Here the court in Florida clearly manifested its intention to retain a large measure of control over the documents. Its intent is revealed by the impoundment order, which served to reinforce control of the documents by the court and the grand jury. The order vacated prior disclosure orders, thus limiting the DOJ's use of the documents; permitted access to only a limited number of people; limited the purposes for which the DOJ could use the documents; and provided for return of the documents to the court upon notice by the court. There was no relinquishment of control by the court or grand jury. See Federal Deposit Insurance Corporation v. Ernst & Ernst, 677 F.2d 230, 232 (2d Cir.1982) ("Nothing in the legislative history of the FOIA suggests that Congress intended the FOIA to apply to courts or to confidentiality orders issued in an action in which a federal agency is a party.")

 Similarly, focusing on the DOJ, it becomes clear that the DOJ did not feel free to dispose of the documents at will. Nothing makes that clearer than the fact that the DOJ felt compelled to seek permission of the Florida court, by way of motion, for an act as harmless as transporting the documents to another room within the same building. Contrary to this Court's assumption in the Memorandum Opinion of September 30, 1983, the impoundment order did not increase DOJ control over the documents; instead it had the effect of decreasing that control.

 In sum, the documents remain within the control of the court and the grand jury, and are thus not "agency records" subject to ...