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Neally Cunningham v. U.S. Attorney General Eric Holder

February 10, 2012

NEALLY CUNNINGHAM,
PLAINTIFF,
v.
U.S. ATTORNEY GENERAL ERIC HOLDER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

Plaintiff Neally Cunningham, a federal prisoner incarcerated in Jesup, Georgia, brings this pro se action pursuant to the Freedom of Information Act, 5 U.S.C. § 552. Plaintiff submitted a FOIA request to the United States Department of Justice seeking the production of certain documents related to his conviction on federal drug charges. DOJ conducted a search that yielded grand jury transcripts, non-grand jury records, and some public records. DOJ withheld the grand jury transcripts, partially released the non-grand jury records, and requested that Plaintiff take further administrative action in order to obtain the public records. Plaintiff then brought this lawsuit, contending that FOIA entitles him to the grand jury transcripts and prohibits DOJ's decision on the public records. DOJ has now filed a Motion for Summary Judgment. As the Court finds that DOJ's withholding of the grand jury transcripts was proper and that Plaintiff has failed to exhaust his administrative remedies to obtain the public records, the Motion will be granted.

I.Background

On July 28, 2009, Plaintiff sent a FOIA request to DOJ's Executive Office for United States Attorneys (EOUSA). See Dft. Motion, Attach. 1 (Declaration of Vinay Jolly), Exh A (Plaintiff's FOIA request). In his request, Plaintiff sought: grand jury transcripts "pertaining to any and all testimony by [certain] government[] witnesses . . . and any witnesses that testified in front of the Grand Jury"; "any and all statements made to the Grand Jury by the Prosecutor"; and "[a]ny and all Discovery material related to [Plaintiff's] case." Id. On September 9, 2009, EOUSA sent a letter to Plaintiff acknowledging receipt of his request and giving him the option of narrowing the request in order to hasten the response time. See Jolly Decl., ¶ 6; id., Exh B (EOUSA letter of receipt). Plaintiff responded with a letter narrowing his request to "discovery material obtained by the U.S. Attorney' [sic] office"; "Grand Jury Testimony From [two named] Government witnesses pertaining to the alleged drug transaction on 2-25-05 and 2-26-05"; and "Grand Jury testimony from the prosecutor . . . in regards to the alleged transactions in [Plaintiff's] indictment." Jolly Decl., ¶ 7; id., Exh C (Plaintiff's September 15, 2009, letter).

EOUSA discovered relevant records located at the United States Attorney's office for the Middle District of Florida (USAO/MDFL) and subsequently forwarded Plaintiff's request to that office. See Motion, Attach. 2 (Declaration of Lisa Tenhengel), ¶ 7. USAO/MDFL performed a search using the Legal Information Office Network System (LIONS), which revealed approximately 57 pages of records responsive to Plaintiff's request that were located within DOJ and another 33 pages of public records. See id., ¶¶ 7-12. On October 9, 2009, the DOJ records were transferred to EOUSA, id., ¶ 12, which subsequently sent a letter to Plaintiff notifying him that responsive records had been located. See Jolly Decl., Exh D (EOUSA response).

The 57 pages of DOJ records consisted of 15 pages of grand jury transcripts and 42 pages of non-grand jury materials related to the prosecution of Plaintiff. See Jolly Decl., ¶ 8; id., Attach. A (Vaughn index). EOUSA informed Plaintiff that the grand jury transcripts would be withheld in full based on FOIA Exemption 3. See EOUSA response at 1; Vaughn index; Jolly Decl., ¶ 8. The 42 pages of non-grand jury materials were treated as follows: 11 pages were released subject to redactions based on FOIA Exemption 7(C); 16 pages were withheld in full based on the same exemption and the Privacy Act, 5 U.S.C. § 552a; and the remaining 15 pages were immediately released to Plaintiff. See EOUSA response at 1; Vaughn index; Jolly Decl., ¶ 8.

As to the 33 pages of public records that were located, EOUSA notified Plaintiff that "[t]here are public records which may be obtained from the clerk of the court or [the EOUSA] office, upon specific request. If you wish to obtain a copy of these records, you must submit a new request . . . subject to copying fees." See EOUSA response at 2.

Finally, EOUSA's response letter also advised Plaintiff of his right to an administrative appeal with DOJ's Office of Information Policy (OIP). Id. On February 16, 2010, Plaintiff appealed to OIP, which decided to affirm EOUSA's decision. See Jolly Decl., Exh E (Plaintiff's OIP appeal); id., Exh G (OIP decision). Plaintiff subsequently filed this suit challenging EOUSA's decision.

II.Legal Standard

Summary judgment may be granted if "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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record." FED. R. CIV. P. 56(c)(1)(A). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[A] material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" on an element of the claim. Liberty Lobby, Inc., 477 U.S. at 248. Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

FOIA cases typically and appropriately are decided on motions for summary judgment. Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. United States Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In a FOIA case, the Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations if they are relatively detailed and when they describe "the documents and 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 by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Cent. Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).

III.Analysis

For ease of analysis, the Court has separated the records located by EOUSA into three separate groups: the 15 pages of grand jury transcripts, the 33 pages of public records, and the 42 pages of various non-grand jury records. In justifying the partial withholding of the non-grand jury records, Defendants assert exemptions under FOIA, 5 U.S.C. § 552(b)(7)(C), and the Privacy Act, 5 U.S.C. § 552a(j)(2). See EOUSA response at 1; Vaughn index; Jolly Decl., ¶ 8. Plaintiff does not dispute the exemptions asserted for withholding these non-grand jury records. Instead, he only argues that FOIA entitles him to the first two groups of documents -- namely, the grand jury transcripts and the 33 pages of public records. See Pl. Resp. at ...


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