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Boehm v. Federal Bureau of Investigation

United States District Court, District Circuit

October 18, 2013

JOSEF F. BOEHM, Plaintiff,



Defendants the Federal Bureau of Investigation (“FBI”), the Executive Office for United States Attorneys (“EOUSA”), and the Criminal Division of the United States Department of Justice have moved for summary judgment on the few remaining issues in this Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2006), case. Defs.’ Supplemental Mem. in Supp. of Defs.’ Mot. for Summ. J. (“Defs.’ Supp. Mem.”) [Dkt. # 49]. On June 10, 2013, the Court granted defendants’ first motion for summary judgment in part, denied it in part, and remanded to defendants “for closer review and supplementation of the basis for withholding” of a few categories of records: (1) the representative document found at page number BOEHM-2738 withheld by the FBI and any documents it was designated to represent; (2) “[d]ocuments that the EOUSA has withheld under the explanation that they are ‘related to the grand jury’”; and (3) “[i]nformation that the EOUSA has withheld under exemption 7(D).”[1] Boehm v. FBI, __ F.Supp.2d __, No. 9-2173, 2013 WL 2477091, at *25 (D.D.C. June 10, 2013). Defendants conducted further review and submitted two additional declarations in support of their contention that the contested documents have been properly withheld under the cited FOIA exemptions Defs.’ Supp. Mem. at 2-4; see also Hardy 2d Decl. [Dkt. # 49-1]; Luczynski Supplemental Decl. ¶ 3 (“Luczynski Supp. Decl.”) [Dkt. # 49-2]. Plaintiff maintains that defendants have still not met their burden to establish the applicability of the exemptions or to justify the present redactions. Pl.’s Resp. to Defs.’ Supplemental Mem. in Supp. of Defs.’ Mot. for Summ. J. (“Pl.’s Resp.”) at 2-5 [Dkt. # 51].


Summary judgment is appropriate “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). The party seeking summary judgment bears the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must “designate specific facts showing there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving party; a fact is only “material” if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party’s motion, the court must “view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the summary judgment motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).


I. Defendants properly withheld the grand jury materials under Exemption 3.

FOIA Exemption 3 authorizes the government to withhold information that is “specifically exempted from disclosure by statute” so long as (1) the statute “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue” and (2) the statute relied on was “enacted after the date of enactment of the OPEN FOIA Act of 2009 [enacted Oct. 28, 2009].” 5 U.S.C. § 552(b)(3)(A)(i), (b)(3)(B). Federal Rule of Criminal Procedure 6(e) is one of the “statutes” to which Exemption 3 refers. Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1113 (D.C. Cir. 2007) (“FRCP 6(e) . . . counts as a statute for purposes of Exemption 3, as it has been positively enacted by Congress.”).

Rule 6(e) explicitly prohibits - with exceptions not relevant in this case - the disclosure of “matter[s] occurring before [a] grand jury.” Fed. R. Crim. P. 6(e)(2); see also Senate of P.R. v. DOJ, 823 F.2d 574, 582 (D.C. Cir. 1987). Therefore, when combined with FOIA’s Exemption 3, Rule 6(e) prohibits the disclosure of certain grand jury matters even in the face of a valid FOIA request. See 5 U.S.C. § 552(b)(3); Fed. R. Crim. P. 6(e)(2); Senate of P.R., 823 F.2d at 582. The combined protection of Rule 6(e) and Exemption 3 is not without limit, though. Senate of P.R., 823 F.2d at 582 (noting that the D.C. Circuit has “never embraced a reading of Rule 6(e) so literal as to draw ‘a veil of secrecy . . . over all matters occurring in the world that happen to be investigated by a grand jury.”) (alteration in original), quoting SEC v. Dress Indus., Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980) (en banc). As this Court explained in its June 10, 2013 Memorandum Opinion, “[t]he disclosure of information ‘coincidentally before the grand jury [which can] be revealed in such a manner that its revelation would not elucidate the inner workings of the grand jury’ is not prohibited.” Boehm, 2013 WL 2477091, at *14 (alterations in original), quoting Senate of P.R., 823 F.2d at 582. Defendants bear the burden of establishing that the disclosure of the information they have withheld would “elucidate the inner workings of the grand jury.” Senate of P.R., 823 F.2d at 582; see also Id . at 579 n.9.

Defendants failed to meet that burden when they filed their first summary judgment motion in this case. In support of the motion, the FBI justified its withholding of representative document BOEHM-2738 and the documents it represented by describing those documents as “‘FBI FD-302 form, information obtained pursuant to Federal Grand Jury subpoena.’” Boehm, 2013 WL 2477091, at *14, quoting Hardy 1st Decl. at 11 [Dkt. # 36-5]. Since FBI 302 forms do not necessarily reveal what transpired before a grand jury, the Court declined to accept the FBI’s claim that the material was covered by Exemption 3 without more detailed information. Similarly, EOUSA acknowledged its withholding of documents and stated that it did not “even process[] some documents that might have been responsive to plaintiff’s requests if they were found to be ‘related to the grand jury.’” Id. at *15, quoting Luczynski Original Decl. ¶ 11 [Dkt. # 36-4]. The Court found this description to be too vague to support the broad assertion of Exemption 3. Id. at *15. Consequently, the Court ordered both the FBI and EOUSA to provide supplemental information for why the withheld documents should be excluded as grand jury material. Id. at *14-*15.

Pursuant to that order, the FBI reviewed the documents and concluded once again that Exemption 3 prevented their disclosure. Defs.’ Supp. Mem. at 4. In support of its conclusion, the FBI filed a Second Declaration of David M. Hardy, who explained that the information withheld “concerns the names and identifying information of individuals subpoenaed to testify before the Federal Grand Jury, information that identifies particular records subpoenaed by the Federal Grand Jury, and substantive information that would otherwise shed light on the focus, scope and direction of the Federal Grand Jury scope, direction and activities.”[2] Hardy 2d Decl. ¶ 9. Mr. Hardy also averred that disclosure of representative document BOEHM-2738 and the documents it represents “would violate the secrecy of the grand jury proceedings by revealing the Federal Grand Jury’s inner workings.” Id.

Similarly, EOUSA reviewed the grand jury documents and concluded that Exemption 3 prohibited their disclosure. Luczynski Supp. Decl. ¶¶ 2-3. EOUSA explained that “details concerning a Federal Grand Jury subpoena, including the name and identifying information of an individual subject to a Federal Grand Jury subpoena and information that identifies specific records or evidence subpoenaed by the Federal Grand Jury were withheld pursuant to this exemption, ” and that disclosure of the withheld information would, in EOUSA’s view, “reveal a subject of the investigation as well as a specific aspect of the Grand Jury’s investigation into plaintiff’s case, thereby revealing the secret, inner workings of the Federal Grand Jury that considered the case.” Id. ¶ 3.

Plaintiff does not contest that the names and identifying information of individuals subpoenaed to testify before the federal grand jury were properly withheld pursuant to Exemption 3 and Rule 6(e), Pl.’s Resp. at 2, 5, and “such matters as ‘the identities of witnesses or jurors’” are one of the touchstones of information protected by Rule 6(e). Senate of P.R., 823 F.2d at 582 (citation omitted). Therefore, the Court finds that both the FBI and EOUSA satisfied their burden to establish that, at a minimum, information that would otherwise reveal the names or identities of individuals subpoenaed to testify before the federal grand jury was properly withheld.

But plaintiff continues to challenge defendants’ decision to withhold the exhibits and records subpoenaed by the grand jury as well as the substantive information the grand jury considered. Pl.’s Resp. at 2-3, 4-5. He argues that “there is no blanket exception to all information that was before a grand jury” and that “[d]efendants have not shown that the substantive information they describe cannot be segregated from the identifying information.” Id. at 5, citing Senate of P.R., 823 F.2d at 582; see also Id . at 2.

Plaintiff is correct that there is no per se rule exempting all information in the government’s possession that was ever presented to a grand jury simply because the grand jury received it. But the cases he relies upon do not go so far as to mandate the disclosure of grand jury exhibits under FOIA either. First, “Rule 6 is ‘quite clear that disclosure of matters occurring before the grand jury is the exception and not the rule, ’” Acosta v. FBI, __ F.Supp.2d __, No. 12-1578, 2013 WL 5306699, at *4 (D.D.C. Sept. 23, 2013), quoting Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv., 656 F.2d 856, 868 (D.C. Cir. 1981), and in this circuit, “[a]ll grand jury subpoenas (be they ad testificandum or duces tecum) . . . fall within FOIA’s third exemption, ” Lopez v. DOJ, 393 F.3d 1345, 1350 (D.C. Cir. 2005); see also Plunkett v. DOJ, 924 F.Supp.2d 289, 299 (D.D.C. 2013); Blackwell v. FBI, 680 F.Supp.2d 79, 92-93 (D.D.C. 2010), aff’d 646 F.3d 37 (D.C. Cir. 2011). Second, although “[t]he fact that a grand jury has subpoenaed documents concerning a particular matter does not [automatically] insulate that matter from investigation in another forum, ” Dresser, 628 F.2d at 1383, information identifying which documents were subpoenaed and the documents themselves may still be protected under Rule 6(e) if revealing that information would tend to “elucidate the inner workings of the grand jury, ” Senate of P.R., 823 F.2d at 583, quoting Fund for Constitutional Gov’t, 656 F.2d at 870 (internal quotation marks omitted). These considerations are unlikely to be present where ‚Äútestimony or data is sought for its own sake for its intrinsic value in furtherance ...

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