1. The Criminal Division
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.
2. The EOUSA
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
A. Standard of Review
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 with the particular part of a withheld document to which they apply." Mead Data Central, Inc. v. U.S. Dep't of Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242, 251 (D.C. Cir. 1977).
The Courts may, and often do, grant summary judgment on the basis of government affidavits or declarations that explain how requested information falls within a claimed exemption, as long as the affidavits or declarations are sufficiently detailed, non-conclusory, and submitted in good faith, and as long as a plaintiff has no significant basis for questioning their reliability. Goland v. CIA, 197 U.S. App. D.C. 25, 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927, 63 L. Ed. 2d 759, 100 S. Ct. 1312 (1980); see also Coastal States Gas Corp. v. Dept. of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 861 (D.C. Cir. 1980); Goland v. CIA, 197 U.S. App. D.C. 25, 607 F.2d 339, 352 - 55 (D.C. Cir. 1978); Shurberg Broadcasting of Hartford, Inc. v. FCC, 617 F. Supp. 825, 831 (D.D.C. 1985).
In this case, as will be discussed below, Plaintiffs Kronberg and Welsh have supplied such significant bases for questioning the reliability and completeness of the government's affidavits.
Further, and more significantly, Defendant has not demonstrated that it has discharged its burden under FOIA of demonstrating "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, supra, 479 F.2d at 186. For that reason, Defendant's Motion for Summary Judgment must be denied, and Plaintiff's Motion to Compel Further Searches must be granted.
B. The FOIA Statute and Its Exemptions
"The central purpose of FOIA is to 'open up the workings of government to public scrutiny' through the disclosure of government records." Stern v. FBI, 237 U.S. App. D.C. 302, 737 F.2d 84, 88 (D.C. Cir. 1984 (quoting McGehee v. CIA, 225 U.S. App. D.C. 205, 697 F.2d 1095, 1108 (D.C. Cir. 1983). In order to further the "citizens' right to be informed about 'what their government is up to'", the FOIA mandates "'full agency disclosure unless information is exempted under clearly delineated statutory language'". Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 109 S. Ct. 1468, 1481, 103 L. Ed. 2d 774 (1989) (quoting Department of Air Force v. Rose, 425 U.S. 352, 360 - 61, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976)). However, in recognition of the need to protect important governmental functions as well as the privacy of individuals, Congress exempted from disclosure nine categories of information. 5 U.S.C. § 552(b); see Stern v. FBI, 737 F.2d at 88.
In this case, the government invokes the protection of FOIA exemptions (b)(3), (5), (6), (7), and (7)(C) to justify their refusal to disclose certain information to Plaintiffs. Plaintiffs dispute the applicability of FOIA exemptions (b) (3) and (5)
and request that the Court compel the Defendant to conduct further searches for relevant documents.
Accordingly, the issues before the Court upon Defendant's Motion for Summary Judgment are whether the government properly invoked exemptions (b) (3) and (5) in withholding certain records from Plaintiffs, and whether the government is obligated under FOIA to conduct further searches. For the reasons stated below, the Court concludes that Defendant improperly invoked the FOIA exemptions in a number of instances, and, because the government has not shown that it has conducted a legally adequate search, it must be compelled to conduct further searches, as directed in the accompanying Order.
C. Defendant Improperly Invoked Exemption (b)(3) In Certain Instances
Exemption (b)(3) of FOIA covers records which are "specifically exempted from disclosure by statute . . . provided that such statute [requires withholding] in such a manner as to leave no discretion on the issue." 5 U.S.C. § 552(b)(3); see also Senate of Puerto Rico v. United States Department of Justice, 262 U.S. App. D.C. 166, 823 F.2d 574, 582 (D.C. Cir. 1987). The Federal Rules of Criminal Procedure, in turn, prohibit disclosure of "matters occurring before [a] grand jury." Fed. R. Crim. P. 6(e)(2).
While acknowledging the existence of a "grand jury exception" to the general disclosure requirements of FOIA, the Court of Appeals for this Circuit has limited it to material which, if disclosed, would "'tend to reveal some secret aspect of the grand jury's investigation[;]' such matter 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.'" Id. (footnote omitted). In sum, in order to be exempted under (b)(3), the material must "'elucidate the inner workings of the grand jury'". Id. at 583 (quoting Fund for Constitutional Government v. National Archives and Records Service, 211 U.S. App. D.C. 267, 656 F.2d 856, 870 (D.C. Cir. 1981)). If this were not the case, "automatically sealing all that a grand jury sees or hears would enable the government to shield any information from public view indefinitely by the simple expedient of presenting it to the grand jury." Id. at 582.
In this case, the EOUSA withheld in full the following documents pursuant to Exemption (b)(3): Vaughn numbers 4, 6, 19, 20, 21, 25, 33 and 36.
Defendant's Vaughn Submission, Boseker Declaration, P 11. Except for document number 4, all of the documents withheld are motions by the Government to disclose grand jury material to prosecutors in other jurisdictions, and court orders issued pursuant to those motions. In a number of instances, Defendant justifies its non-disclosure on the ground that either motions or court orders were filed under seal.
The surface appeal of that argument is undermined by the fact that Defendant has already released, either to private counsel who were seeking to obtain documents for the purposes of Ms. Kronberg's Kastigar hearing, or to defense counsel as Jencks12 material, several of the documents it seeks to withhold pursuant to this exemption.
Plaintiffs' Opposition to Defendant's Motion for Summary Judgment at 24 - 26, and exhibits referenced therein. The Court of Appeals for our Circuit has held that "the government cannot rely on an otherwise valid exemption claim to justify withholding information that has been 'officially acknowledged' or is in the 'public domain.'" Davis v. U.S. Department of Justice, 296 U.S. App. D.C. 405, 968 F.2d 1276, 1279 (D.C. Cir. 1992) (quoting Afshar v. Department of State, 226 U.S. App. D.C. 388, 702 F.2d 1125, 1130 - 34 (D.C. Cir. 1983) and Fitzgibbon v. CIA, 286 U.S. App. D.C. 13, 911 F.2d 755, 765 - 66 (D.C. Cir. 1990)). Although, in asserting a claim of prior disclosure, Plaintiffs bear the burden of production "'pointing to specific information in the public domain that appears to duplicate that being withheld,'" Davis, supra, at 1279 (quoting Afshar, supra, at 1130), "the ultimate burden of persuasion, to be sure, remains with the government". Id. In this case, Plaintiffs contend the following regarding specific categories of documents being withheld by Defendant:
. Withheld documents numbered 6, 9, 20 and 36, disclosed to counsel for Ms. Kronberg, should be released;
. If the U.S. Attorney in fact has the discretion to release the motions and orders he submitted under seal, the application of Exemption (b)(3) on the grounds that a sealing order is in effect should be deemed improper;