The opinion of the court was delivered by: GLADYS KESSLER
I. Introduction and Procedural History
Plaintiffs pro se Marielle Kronberg and Richard Welsh bring this action against Defendant Department of Justice ("DOJ") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiffs contend that the DOJ has been and is withholding certain records and information requested by Plaintiffs which are maintained by the DOJ's Criminal Division and the Executive Office of U.S. Attorneys. Specifically, Plaintiffs' requests seek records concerning grants of testimonial immunity to them pursuant to 18 U.S.C. § 6001 et. seq. Each Plaintiff was under indictment in related state cases at the time his or her testimony was compelled. Each Plaintiff was compelled to provide immunized testimony before both a federal grand jury and a federal trial jury in Alexandria, Virginia; Mr. Welsh was also compelled to testify under immunity in a related federal trial in Boston, Massachusetts. Both Plaintiffs were subsequently convicted in state courts on charges allegedly related to the subject of their immunized testimony. According to the Complaint and other papers filed with this Court, Plaintiffs are in the process of challenging their state convictions under Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972),
and want to use the requested documents for that purpose.
Plaintiffs filed their Complaint on December 7, 1992, and Defendant answered on January 3, 1993. On January 25, 1993, the Court
granted Plaintiffs' Motion to Compel the Production of Records and the Preparation of A Vaughn Index
for Withheld Records. On March 10, 1993, Defendant submitted its purported Vaughn Index along with its Motion for Summary Judgment. On March 31, 1993, Plaintiffs responded to Defendant's Motion for Summary Judgment and filed their Motion to Compel Further Searches. These cross-motions have been ripe since May 10, 1993.
Since that date, Plaintiffs have submitted several additional filings to this Court, none of which have been responded to by Defendant. First, on February 3, 1994, Plaintiffs filed a copy of Plaintiff Welsh's Petition for a Writ of Habeas Corpus Ad Subjiciendum, filed on January 24, 1994 in the U.S. District Court for the Western District of Virginia. Plaintiffs submitted this brief in order to demonstrate the importance and "emergency nature" of their FOIA requests. More recently, on January 18, 1995, Plaintiffs filed with this Court two documents obtained by other FOIA requesters, in order to demonstrate that the information sought by Plaintiffs is available to Defendant, but Defendant has not conducted a reasonable search for the requested records in this case. Finally, on February 3, 1995, Plaintiffs filed a Motion for Leave to Take Discovery pursuant to Fed. R. Civ. P. 56(f), in order to obtain facts from Defendant to demonstrate that Defendant's searches were legally inadequate under FOIA.
The Court has considered the Motions, their Oppositions, the Replies, the file in this case--which is voluminous--in its entirety, and the applicable statutory and case law. For the reasons discussed below, the Court concludes that Defendant's Motion for Summary Judgment must be denied, and Plaintiff's Motion to Compel further searches must be granted.
A. Ms. Kronberg's Requests
Plaintiff Marielle H. Kronberg, a resident of Loudoun County, Virginia, was indicted by a New York State grand jury on March 3, 1987.
On or about December 16, 1987, Ms. Kronberg was immunized and compelled to testify under 18 U.S.C. § 6001 et. seq.6 by Order of the U.S. Court for the Eastern District of Virginia, before a federal grand jury sitting in Alexandria, Virginia ("Alexandria grand jury"). Ms. Kronberg testified under that immunity grant on three days in 1987 and 1988 concerning matters substantially related to her New York State indictment. On or about December 1, 1988, Ms. Kronberg was immunized and compelled to testify at trial in U.S.A. v. Lyndon LaRouche, et. al., Criminal Action No. 88-243-A (E.D. Va) ("Alexandria LaRouche trial"), again on subject matters related to her New York indictment. After she was convicted in August 1989 on one count in the New York charges (People of New York v. Canning, et. al., N.Y. Sup. Ct., N.Y. Co., Indictment No. 8654.87), Ms. Kronberg challenged her conviction pursuant to Kastigar v. U.S., 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972).
On or about May 6, 1991, Ms. Kronberg made a request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to the Department of Justice ("DOJ") Criminal Division. This request sought documents concerning "the issue of a testimonial immunity order being sought for [her], whether for a grand jury or trial," and any requests by the federal government to the State of New York to delay her state prosecution. She specifically included as part of the request, all correspondence between "Main Justice "--which she defined to include both the Criminal Division and the Office of Enforcement Operations within that Division--"and other Department of Justice offices, federal agencies, or state prosecutive jurisdictions concerning such a proposed immunity order, in which Main Justice solicited the other offices' opinion of the proposed immunity order and/or the other offices offered such opinions." Complaint, Exhibit 1 (emphasis in original).
After processing Ms. Kronberg's FOIA request, the Criminal Division located one responsive document in its files, which it disclosed in part and withheld in part. On September 20, 1991, Ms. Kronberg appealed the Criminal Division's action of withholding certain information from her. Prior to deciding the appeal, the Division, by letter dated October 17, 1991, notified Ms. Kronberg that additional information might be obtained from the Executive Office of the United States Attorneys ("EOUSA"). On February 5, 1992, in response to Ms. Kronberg's appeal, the Division advised Ms. Kronberg that it would release additional information pertaining to her request.
Ms. Kronberg directed a similar request, replacing "Main Justice" with "U.S. Attorney's Office" in the text. EOUSA received this request on May 15, 1991, and, after processing the request, ultimately released 71 pages of documents without redaction and withheld 28 pages in full pursuant to FOIA Exemptions 3 (in conjunction with Fed. R. Crim. P. 6(e)) and 5 and Privacy Exemption (j)(2). See Declaration of John Boseker. This search was primarily coordinated by Mr. John Boseker, Attorney-Advisor, EOUSA. Id. Mr. Boseker also directed Ms. Charlene A. Stawicki, Special Assistant United States Attorney, District of Massachusetts, to search 21 boxes of material in the U.S. Attorney's Office in Boston, but Ms. Stawicki located no documents responsive to Ms. Kronberg's request. See Declaration of Charlene A. Stawicki. In addition, Mr. Boseker directed Mr. Kent Robinson, an Assistant United States Attorney for the District of Oregon and formerly an Assistant United States Attorney for the Eastern District of Virginia, to conduct a search of records in his possession related to the LaRouche prosecutions, but Mr. Robinson advised that he had no records responsive to Ms. Kronberg's requests.
Finally, after another search in the Office of the U.S. Attorney for the Eastern District of Virginia, Mr. Boseker personally reviewed the contents of a file from that Office entitled In re: People of the State of New York v. Marielle Kronberg, No.900465, USAO No. 9001775. Mr. Boseker retrieved this file because certain of the previously-processed records responsive to Ms. Kronberg's request contained a number of grand jury documents and documents subject to sealing orders. Mr. Boseker submitted a description of the contents of this file, as well as the reasons for Defendant's withholding of a large part of it, in his Declaration submitted with Defendant's Motion for Summary Judgment.
Plaintiff Richard E. Welsh, a resident of Leesburg, Virginia, was indicted by a Commonwealth of Virginia grand jury on February 17, 1987. On or about July 22, 1987, Mr. Welsh was immunized and compelled to testify by Order of the U.S. District Court for the Eastern District of Virginia before a federal grand jury sitting in Alexandria, Virginia. Mr. Welsh testified under that immunity grant on seven days in 1987 and 1988 concerning matters related to his Commonwealth of Virginia indictment. On February 17, 1988, Mr. Welsh was immunized and compelled to testify at trial by Order of the U.S. District Court for the District of Massachusetts in U.S.A. v. The LaRouche Campaign, et. al., Criminal No. 86-323-K ("Boston LaRouche trial"). Mr. Welsh testified under that immunity grant for eleven days; again, the subject matter of his testimony was related to his Virginia indictment. On or about November 29, 1988, Mr. Welsh was immunized and compelled to testify at trial in U.S.A. v. Lyndon LaRouche, et. al., supra, in Alexandria for three days. Again, the subject matter of his testimony was related to his Virginia indictment. After challenges to his indictment under Kastigar, supra, were denied, Mr. Welsh entered a guilty plea pursuant to an agreement with the prosecution in Commonwealth of Virginia v. Welsh, Roanoke County Circuit Court, Criminal Nos. CR8900623 - 626. Mr. Welsh was sentenced in August, 1990.
Plaintiff Welsh's FOIA requests sought essentially the same kind of information concerning his immunity orders as did Ms. Kronberg. Specifically, by letter dated May 14, 1991, Mr. Welsh wrote to the Office of Information and Privacy of the DOJ, requesting access to records "in the possession of the Department of Justice, particularly the Criminal Division and the Office of Enforcement Operations within the Criminal Division" for the time period October 6, 1986 to December 31, 1988, concerning the issue of a testimonial immunity order being sought for him, whether for a grand jury or a trial.
On June 10, 1992, the Criminal Division received Mr. Welsh's request. Following Mr. Welsh's submissions of a Criminal Division Systems of Records List and a Privacy Act Identification and Request Form, the Criminal Division located one document responsive to his request. The Division released a portion of that document and withheld a portion of it.
Mr. Welsh appealed the Criminal Division's action on September 20, 1991. Prior to a decision on the appeal, the Criminal Division notified Mr. Welsh that he might be able to locate some of the information he sought, if it existed, from the EOUSA. The Office of Information and Privacy upheld on appeal the previous action withholding certain information.
Mr. Welsh submitted a similar request to the EOUSA. By letter dated December 30, 1992, EOUSA released in full the nine pages of documents responsive his request that it located.
III. Defendant's Motion for Summary Judgment Must Be Denied
Under Rule 56, Fed. R. Civ. P., summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.
The FOIA places the burden of justifying nondisclosure on the government. 5 U.S.C. §§ 552(a)(4)(B), (b). In order for summary judgment to be appropriate in favor of the government in a FOIA case, the government must prove "that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from [the FOIA's] inspection requirements." National Cable Television Ass'n, Inc. v. Federal Communications Commission, 156 U.S. App. D.C. 91, 479 F.2d 183, 186 (D.C. Cir. 1973). In order to discharge its burden, the agency may provide a "relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant correlating those claims ...