S.Ct. 2548, 91 L.Ld.2d 265 (1986). Only disputes over facts that can
establish an element of the claim, and thus those that might affect its
ultimate resolution, can create a "genuine issue" sufficient to preclude
summary judgment. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505;
Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
To prevail on a motion for summary judgment, the moving party must
establish that there are no genuine issues of material fact and that the
non-moving party has failed to offer sufficient evidence to support a
valid legal claim. See Anderson, 477 U.S. at 256, 106 S.Ct. 2505;
Celotex, 477 U.S. at 325, 106 S.Ct. 2548. In ruling on the motion, the
court must accept the evidence of the non-moving party as true and must
draw all justifiable inferences in favor of the non-moving party. See
Anderson, 477 U.S. at 255, 106 S.Ct. 2505. It is not sufficient,
however, for the nonmoving party to establish "the mere existence of a
scintilla of evidence in support of the [non-moving party's] position
. . .; there must be evidence on which the jury could reasonably find for
the [non-moving party]." Id. at 252, 106 S.Ct. 2505. If the evidence in
favor of the non-moving party "is merely colorable, or is not
significantly probative, summary judgment may be granted." Id. at
249-50, 106 S.Ct. 2505 (internal citations omitted).
B. Defendant's Exemption 3 Argument
The gravamen of the defendant's argument centers on exemption 3 of the
FOIA statute. In essence, the defendant contends that exemption 3
prevents disclosure of "materials specifically exempted from disclosure by
statute" and, because Federal Rule of Criminal Procedure 6(e) provides
that grand jury materials shall be secret, the defendant can properly
withhold these materials from the public. See Def.'s Reply at 3-6. The
As a preliminary matter, the parties do not dispute that Rule 6(e)
qualifies as a statute for purposes of exemption 3. See Pl.'s Opp'n at
4; Def.'s Reply at 3. As courts in this circuit have held, "[w]hile most
of the rules contained in the Federal Rules of Criminal and Civil
Procedure would not qualify as a `statute' under exemption 3, Rule 6 does
because it was enacted by Congress." Benitez v. Department of Treasury,
Civ. Action No. 97-0043 (RMU), slip op. at 4 (D.D.C. Jan. 29, 1999)
(Urbina, J.). In the case at bar, then, the debate revolves around what
Rule 6(e) covers.
According to the plaintiff, "if the matters do not disclose the inner
workings of the grand jury, there is no prohibition/exemption of the
records." Pl.'s Opp'n at 4 (citing Fund for Constitutional Gov't v.
National Archives and Records Service, 656 F.2d 856, 870 (D.C.Cir.
1981); S.E.C. v. Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C.Cir.
1980)). As a result, the plaintiff contends that Rule 6(e) does not
provide for complete exemption of all materials. For example, he asserts
that "[t]he ballots of the grand jurors would not provide any information
into the inner workings of grand jury process [sic]." Pl.'s Opp'n at 4.
Mr. Flores, however, misapplies the rule.
The EOUSA has the more compelling argument that Rule 6(e) covers the
materials Mr. Flores sought:
Indeed, there are perhaps no records more likely to
reveal the "inner workings" of a grand jury than
transcripts of grand jury testimony, which provide a
precise accounting of events that occur before the
grand jury. Plaintiff provides no legal authority that
would support a finding that grand jury transcripts
fall outside the scope of Rule 6(e). Instead, each of
the cases plaintiff cites on this issue in his
opposition mentions grand jury testimony or
transcripts as exactly the type of grand jury record
that falls within Rule 6(e)'s prohibition on
Def.'s Reply at 4 (citing, inter alia, Senate of P.R. v. United States
Dep't of Justice, 823 F.2d 574, 582 (D.C.Cir. 1987) (holding that "the
touchstone is whether disclosure
would `tend to reveal some secret aspect of the grand jury's
investigation' such matters 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.'"
Accordingly, the materials Mr. Flores sought fell into the precise
category of documents that the D.C. Circuit has said should not be
disclosed under Rule 6(e). As this court found in Benitez, due to "the
implication that its disclosure would reveal some secret nature of the
grand jury proceedings, the court finds that defendant has adequately
justified its withholding on the grounds of exemption 3." Civil Action
No. 97-0043, slip op. at 4. The same logic applies to the instant case.
Thus, because Rule 6(e) prohibits the disclosure of the materials the
plaintiff sought, the defendant properly withheld these materials under
FOIA's exemption 3.
For the reasons stated above, the court will grant the defendant's
motion for summary judgment. An Order consistent with this Memorandum
Opinion is separately and contemporaneously issued this ___ day of
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