(3)(A)(ii) of this subdivision (government personnel deemed necessary by a government attorney to assist that attorney to enforce federal criminal laws) shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules." Fed. R. Crim. P. 6(e). The notes of the Advisory Committee reveal: "This rule continues the traditional practice of secrecy on the part of members of the grand jury, except when the court permits a disclosure (citations omitted)." Fed. R. Crim. P. 6(e) (Note to Subdivision (e)) (1990).
"Any documents which are generated by the Grand Jury proceedings . . ., fall within the protection of Rule 6(e) and should not be released under the FOIA." Joseph Schlitz Brewing Co. v. SEC, 548 F. Supp. 6, 9 (D.D.C. 1982). A petition for disclosure of grand jury material should be "filed in the district where the grand jury convened" pursuant to Fed. R. Crim. P. 6(e). See Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 225-226, 60 L. Ed. 2d 156, 99 S. Ct. 1667 (1979). Therefore, to obtain these grand jury documents plaintiff must proceed under Fed. R. Crim. P. 6(e) in the District Court for the Southern District of Florida.
C. Documents Withheld by the BOP
Count VII alleges that the BOP did not respond to plaintiff's FOIA/PA requests for information relating to his confinement at the Federal Correctional Institution, in Milan, Michigan. The BOP released several documents in response to plaintiff's request and withheld, either in full or in part, eleven pages pursuant to Exemptions 5 and 7(C); a photocopy of an envelope; memoranda; a letter; and in-transit information.
A single page memorandum was prepared by the Milan prison staff at the direction of the Attorney Advisor, Office of General Counsel. It contained the Milan staff's responses to the lawsuit filed by plaintiff against the BOP. This memorandum was used to formulate the government's response to plaintiff's case against the agency. It was withheld in its entirety as a pre-decisional attorney work-product pursuant to Exemption 5.
This document was prepared in contemplation of upcoming litigation. It contains the impressions and opinions of professional staff regarding the projected nature and scope of the agency's response to plaintiff's case. Exemption 5 reflects Congress' desire to withhold an attorney's work product from disclosure to the public. NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 154. The professional staff acted as an agent for the Attorney Advisor because it prepared the document to satisfy the attorney's request. The Court finds that the BOP properly withheld this document from disclosure pursuant to Exemption 5.
The information contained within the remaining documents consists of the names of persons who identified plaintiff, personal information, and the location of people who were separated from plaintiff to ensure their mutual safety. These documents were withheld pursuant to Exemption 7(C) which allows an agency to withhold investigative records compiled for law enforcement purposes if disclosing the information could reasonably constitute an unwarranted invasion of personal privacy. 5 U.S.C. § 552(b)(7)(C).
A one page photocopy of an envelope which "contains the name and address of a correspondent of an inmate other than the Plaintiff" was withheld to "protect the personal privacy and safety of this individual." Faulkner Dec. para. 9(C). Similarly, the identity of various named individuals who, in the judgment of the BOP, should be separated from plaintiff to protect their mutual safety was excised from the following one page documents: 1) a CIM Case Information summary dated September 3, 1987; 2) a letter written by an Assistant U.S. Attorney dated March 31, 1987; 3) memoranda written by BOP staff members dated April 14, 1987, and March 17, 1988; 4) an investigative report issued by a BOP staff member dated July 15, 1988; and 5) in-transit information in documents created by the BOP staff dated July 10, 21, and 24 of 1987. The BOP also asserts that personal information pertaining to an individual named by Drug Enforcement Administration staff was properly excised from a memorandum dated January 12, 1981.
All of the documents listed in the preceding paragraph were records "compiled for law enforcement purposes." See King v. Department of Justice, supra. Secondly, their production would have the undesirable effect of invading a third party's personal privacy under Exemption 7(C). The Supreme Court takes a liberal view of what constitutes an "unwarranted invasion of personal privacy" within the meaning of Exemption 7(C).
[A] third party's request for law-enforcement records or information about a private citizen can reasonably be expected to invade that citizen's privacy, and that when the request seeks no "official information" about a Government agency, but merely records what the Government happens to be storing, the invasion of privacy is "unwarranted."
U.S. Dep't. of Justice v. Reporters Committee, 489 U.S. at 780, 109 S. Ct. at 1485. Accordingly, the BOP properly withheld these documents pursuant to Exemption 7(C).
Since the Parole Commission released the entire contents of plaintiff's parole file, summary judgment is entered against plaintiff as to Counts I and VI. The Court also grants summary judgment in favor of the Department of Justice, the Justice Management Division, the USAO for the Eastern District of Missouri and the Southern District of Florida, and the EOUSA on Counts II, III, IV, and V. Plaintiff must proceed under Fed. R. Crim. P. 6(e) to obtain the grand jury information withheld by the USAO for the USAO for the Southern District of Florida in the District Court for the Southern District of Florida. Summary judgment is also granted to the BOP on Count VII.
ORDER - August 21, 1990
Upon consideration of affidavits, exhibits, the entire record in this case, and in accordance with the Court's opinion of this date, it is hereby
ORDERED that summary judgment be and hereby is GRANTED in favor of defendant United States Parole Commission on Counts I and VI; and it is
FURTHER ORDERED that summary judgment be and hereby is GRANTED in favor of the Department of Justice, the Justice Management Division, the USAO for the Southern District of Florida and the Eastern District of Missouri, and the EOUSA on Counts II, III, IV, and V; and it is
FURTHER ORDERED that summary judgment is GRANTED in favor of the Bureau of prisons on Count VII.