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Jeffrey North v. United States Department of Justice

March 31, 2011

JEFFREY NORTH, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

This is a Freedom of Information Act ("FOIA") case brought by Plaintiff Jeffrey North against several agencies within the United States Department of Justice that denied his requests for records relating to certain grand jury proceedings and a witness who testified against him at his criminal trial. On September 30, 2009, the Court granted summary judgment to Defendants with respect to all of Plaintiff's claims except for the claim asserted in Count III of the Amended Complaint. See North v. U.S. Dep't of Justice, 658 F. Supp. 2d 163 (D.D.C. 2009). In Count III, Plaintiff claims that Defendant Executive Office for United States Attorneys ("EOUSA") improperly withheld records in response to Paintiff's FOIA request for documents relating to the grand jury that indicted him. Following the Court's denial of its motion for summary judgment as to Count III, EOUSA conducted a new search for records responsive to Plaintiff's FOIA request and produced some additional records to Plaintiff with certain information withheld under one or more FOIA exemptions. Presently pending before the Court are EOUSA's [71] Renewed Motion for Summary Judgment and Plaintiff's [93] Consolidated Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment, which have now been fully briefed and are ripe for adjudication. After a thorough review of the parties' submissions and attachments thereto and applicable case law and statutory authority, the Court shall grant EOUSA's renewed motion for summary judgment as to Count III and deny Plaintiff's motion for summary judgment.

I. BACKGROUND

Plaintiff Jeffrey North ("North") was tried and convicted in 2000 for several drug- and gun-related offenses. See United States v. North, No. 1:98-cr-10176-GAO (D. Mass. Mar. 15, 2000). On June 8, 2006, North submitted a FOIA request to EOUSA requesting certain information pertaining to the grand jury in his criminal case. See Pl.'s Ex. A (June 8, 2006 FOIA Request).*fn1 Specifically, North asked for: (1) "any and all documents which prove/indicate when the grand jury was convened/assembled or at what point did the term of service of the grand jury begin"; (2) "any and all documents which prove/indicate whether the grand jury . . . was convened/assembled pursuant to either Fed. R. Crim. P. 6 or 18 U.S.C. § 3331"; and (3) "any and all documents which pertain to any extensions of time for the grand jury." In Count III of his Amended Complaint, North claims that EOUSA failed to comply its obligations under FOIA to provide these records. North's FOIA request also asked EOUSA to "provide the date of each grand jury session for the original indictment" and "for the superseding indictment" in his criminal case. See id.

EOUSA previously conducted searches to identify records responsive to North's FOIA request. However, following the Court's denial of EOUSA's initial motion for summary judgment as to Count III, EOUSA conducted a new search for records responsive to North's request. Suppl. Decl. of David Luczynski ¶ 4. The new search was conducted by Christopher F. Bator ("Bator"), an Assistant United States Attorney in the U.S. Attorney's Office for the District of Massachusetts. Id. Bator was one of the prosecutors who represented the government in North's criminal case. Aff. of Christopher F. Bator ("Bator Aff.") ¶ 3. EOUSA provided Bator with all of North's FOIA requests. Suppl. Decl. of David Luczynski ¶ 5.

To attempt to find records responsive to North's FOIA request, Bator obtained and searched all files pertaining to North, including district court and appellate case files, that were in the possession or control of personnel in the U.S. Attorney's Office who worked on North's criminal case. See Bator Aff. ¶ 5. Bator also obtained grand jury files maintained by Maryellen Barrett, the Grand Jury Coordinator for the U.S. Attorney's Office for the District of Massachusetts. Id. On March 8, 9, and 31, 2010, Bator located, obtained, and searched nine file boxes and one file folder containing records pertaining to North. Id. On March 12, 2010, Bator was present while Maryellen Barrett searched the files she maintains as Grand Jury Coordinator. Id. During the searches, Bator located fifteen documents that appeared to be responsive to North's requests. Id. These documents were cover sheets and final pages of transcripts of grand jury testimony in North's criminal case that indicated the date that the testimony was given. Id. No other responsive records were found. Id. Bator states in his affidavit that to the best of his knowledge, "all records and colelctions and/or databases of records within the [U.S. Attorney's Office for the District of Massachusetts] likely to contain records responsive to North's requests have been searched." Id. ¶ 6. Bator further states that he knows of no other location where records that might be responsive to North's requests are likely to be located. Id.

The fifteen pages of records located by Bator are similar to two additional pages of records that had been identified in a prior search by EOUSA. Suppl. Decl. of David Luczynski ¶ 6. These seventeen pages were released to North in redacted form, with seven pages released in full and ten pages released in part. Id. ¶¶ 7, 14. EOUSA applied FOIA Exemption 3, 5 U.S.C. § 552(b)(3), to withhold information that would identify the witnesses who testified before the grand jury. Id. ¶ 13. EOUSA applied FOIA Exemption 7(C), 5 U.S.C. § 553(b)(7)(C), to withhold portions of the record relating to the identity of third-party individuals, such as potential witnesses and law enforcement personnel. Id. ¶ 16.

II. LEGAL STANDARD

In reviewing motions for summary judgment under FOIA, the Court must conduct a de novo reviewof the record. See 5 U.S.C. §522(a)(4)(B). In the FOIA context, "de novo review requires the court to 'ascertain whether the agency has sustained its burden of demonstrating that the documents requested . . . are exempt from disclosure under the FOIA.'" Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003) (quoting Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998)). Summary judgment is proper when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

All underlying facts and inferences are analyzed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Only after an agency seeking summary judgment proves that it has fully discharged its FOIA obligations is summary judgment appropriate. Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Weisberg v. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983). In opposing a motion for summary judgment, a party must offer more than conclusory statements. See Broaddrick v. Exec. Office of the President, 139 F. Supp. 2d 55, 65 (D.D.C. 2001) (citing Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987)). Indeed, a plaintiff pursuing an action under FOIA must establish that the agency has improperly claimed an exemption as a matter of law or that the agency failed to segregate and disclose all non-exempt information in the requested documents. See Perry-Torres v. Dep't of State, 404 F. Supp. 2d 140, 142 (D.D.C. 2005).

Congress enacted FOIA for the purpose of introducing transparency to government activities. See Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 88 (D.C. Cir. 1984). Congress remained sensitive, however, to the need to achieve balance between this objective and the vulnerability of "legitimate governmental and private interests [that] could be harmed by release of certain types of information." Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992); see also Summers v. Dep't of Justice, 140 F.3d 1077, 1079 (D.C. Cir. 1998). Accordingly, FOIA provides nine exemptions pursuant to which an agency may withhold requested information. See 5 U.S.C. §§ 552(a)(4)(B), (b)(1)-(9). The agency must demonstrate the validity of any exemption that it asserts. See id.; Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993) ("Consistent with the purpose of the Act, the burden is on the agency to justify withholding requested documents.") In addition, summary judgment may be granted on the basis of the agency's accompanying affidavits or declarations if they describe "the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). These affidavits may be submitted by an official who coordinated the search, and need not be from each individual who participated in the search. See SafeCard Servs. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Where the adequacy of the search is in doubt, the agency "must show beyond material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant documents." Weisberg, 705 F.2d at 1351. But "[t]here is no requirement that an agency search every record system." Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990).

An agency also has the burden of detailing what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document. Mead Data Cent., Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). Any non-exempt information that is reasonably segregable from the requested records must be disclosed. Oglesby v. U.S. Dep't of the Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996). In addition, district courts are obligated to consider segregability issues sua sponte even when the parties have not specifically raised such claims. Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999).

III. DISCUSSION

In considering the parties' cross-motions for summary judgment, the Court shall address the adequacy of EOUSA's search for records ...


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