Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Toensing v. United States Department of Justice

United States District Court, District Circuit

November 14, 2013

VICTORIA TOENSING, et al. Plaintiffs,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL United States District Judge

The plaintiffs, Victoria Toensing and Joseph diGenova (“the plaintiffs”), have spent more than six years attempting to obtain records under the Freedom of Information Act, 5 U.S.C. § 552, pertaining to grand jury subpoenas issued to them in 2003. Pending before the Court are the plaintiffs’ and the defendant Department of Justice’s (“the defendant”) second round of cross motions for summary judgment, ECF Nos. 29 and 31. For the reasons set forth below, the defendant’s motion is granted and the plaintiffs’ motion is denied.

I. BACKGROUND

The factual history of this case has been laid out in detail in this Court’s prior Memorandum Opinion and need not be repeated here. See Toensing v. U.S. Dep’t of Justice, 890 F.Supp.2d 121, 124–130 (D.D.C. 2012). The facts and procedural history pertinent to the instant motions are as follows. In Toensing, the defendant was ordered to perform a supplementary search for records responsive to the plaintiffs’ FOIA request of June 19, 2007, submitted to the Executive Office of the United States Attorney (“EOUSA”). See Id . at 149. This request sought the following categories of records: (1) “The subpoena of Joseph diGenova and/or Victoria Toensing to testify against their client, Thomas P. Gordon, including but not limited to all memoranda related to such requests and meeting notes;” (2) “All responses and internal memoranda regarding such requests to subpoena diGenova and/or Toensing, including emails and any other electronic communication; and” (3) “All calendar entries regarding requests or decisions to subpoena diGenova and/or Toensing.” Id. at 126. The request pertains to an investigation initiated by then-U.S. Attorney for the District of Delaware Colm Connolly, in which the plaintiffs allege they were improperly and surreptitiously tape recorded and subpoenaed to appear before a grand jury in an effort to compel their disqualification from representing one of their clients. See Pls.’ Mem. Supp. Renewed Cross-Mot. Summ. J. & Opp’n Def.’s Suppl. Mot. Summ. J. (“Pls.’ Mem.”) at 3–6, ECF No. 31-2; Toensing, 890 F.Supp.2d at 125–26.

A supplementary search pertaining to the plaintiffs’ request was ordered because “in conducting the 2007 EOUSA search, [Connolly] was instructed by the EOUSA not to forward six categories of documents in response to the plaintiffs’ request.” Toensing, 890 F.Supp.2d at 126. “The six categories included (1) drafts of papers filed with the DOJ’s Office of Professional Responsibility, (2) drafts of Mr. Connolly’s responses to a Senate Questionnaire, (3) grand jury records, (4) court filings submitted under seal, (5) drafts of court filings submitted under seal or submitted ex parte, and (6) duplicate documents.” Id. at 126 n.2. The Court noted that the “defendant is perhaps justified in inferring that these six categories of documents would be categorically exempt from production under one of more FOIA exemptions, but the fact that a category of documents is likely to be exempt from disclosure does not allow an agency to preemptively exclude such a category of documents from its search.” Id. at 147. Nevertheless, the defendant admitted that these categories of records “were not searched, ” thereby making the defendant’s search for records responsive to the plaintiff’s 2007 request inadequate under the FOIA. See Id . at 147–48.

The supplementary search yielded “six additional responsive records, ” all of which are detailed in a supplemental Vaughn index submitted by the defendant, and withheld in full under FOIA Exemption 3 and in part under Exemption 7(C), 5 U.S.C. §§ 552(b)(3), (b)(7)(C). See Suppl. Decl. of John F. Boseker, Attorney Advisor, EOUSA (“Suppl. Boseker Decl.”) at 1 and Attach. 1 (“Suppl. Vaughn Index”), ECF No. 29-2. All but Document Six are also being withheld in full under Exemption 5, 5 U.S.C. §§ 552(b)(5). See Id . Following this supplementary search, the plaintiff dropped its challenge to the adequacy of the search but now challenges the withholding in full of the six documents, totaling 174 pages, yielded by the search. See Joint Report ¶ 3, ECF No. 28; Suppl. Vaughn Index at 1–2.

Document One is an intra-agency email from one Department of Justice (“DOJ”) attorney to another that “references review and comment and continuing process of legal evaluation.” Suppl. Vaughn Index at 1. The document is withheld in full under Exemptions 3 and 5, with portions also withheld under Exemption 7(C). Id.

Documents Two, Three, and Five are intra-agency memoranda that discuss, inter alia, the authorization of issuing subpoenas to the plaintiffs. Id. at 1–2. The three documents were authored by DOJ attorneys and discuss legal analysis as well as grand jury proceedings. Id. Each document is being withheld in full under Exemptions 3 and 5, with portions also withheld under Exemption 7(C). Id.

Document Four is a draft “of an ex parte affidavit to be submitted with Government’s Answer to motion to quash” the subpoenas to the plaintiffs. Id. at 2. The document is withheld in full under Exemption 3 and Exemption 5, with portions also withheld under Exemption 7(C). Id.

Document Six is a sealed court filing “that discussed the grand jury investigation in detail.” Id. “The substance of the filing concerns matters occurring before the grand jury, and has attachments supporting the sealed filing.” Id. The document is withheld in full under Exemption 3, with portions withheld under Exemption 7(C).

Both parties have moved for summary judgment and supplemented their motions with additional declarations. See Def.’s Suppl. Mot. Summ. J., ECF No. 29; Pl.’s Cross Mot. for Summ J., ECF No. 31. These motions are now ripe for decision.

II. LEGAL STANDARD

A. FOIA

The FOIA requires federal agencies to release all non-exempt agency records responsive to a request for production. See 5 U.S.C. § 552(a)(3)(A). Federal courts are authorized under the FOIA “to enjoin the agency from withholding agency records and to order the production of any agency records ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.