United States District Court, District of Columbia
DAVID W. LINDER, Plaintiff,
EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, Defendant.
N. MCFADDEN, U.S.D.J.
David W. Linder, appearing pro se, challenges the
Executive Office for United States Attorneys'
(“EOUSA”) denial of his Freedom of Information
Act (“FOIA”) request for grand jury testimony.
EOUSA has moved for summary judgment under Rule 56 of the
Federal Rules of Civil Procedure. Mot. for Summ. J., ECF No.
14. Linder has filed an opposition, ECF No. 17, and EOUSA has
replied, ECF No. 18. For the reasons explained below, the
Court finds that EOUSA has complied with its FOIA
requirements and is entitled to judgment as a matter of law.
federal jury in the Eastern District of Virginia convicted
Linder “of all twenty-seven counts of the indictment
against him, ” consisting of various drug distribution
offenses and related charges. United States v.
Linder, 200 Fed. App'x 186, 187 (4th Cir. 2006).
Linder's conviction and sentence, including a life
sentence on a drug conspiracy count, were affirmed in
September 2006. Id. In a FOIA request received by
EOUSA on October 30, 2017, Linder sought the “Grand
Jury Testimony of Roy Hammond.” Decl. of Tricia
Francis, Attach. A, ECF No. 14-2. EOUSA denied Mr.
Linder's request by letter dated December 4, 2017, citing
5 U.S.C. § 552(b)(3) (FOIA Exemption 3). Id.,
Attach. B. Linder administratively appealed to the Office of
Information Policy, which affirmed EOUSA's action.
Id., Attach. E.
requires federal agencies to “disclose information to
the public upon reasonable request unless the records at
issue fall within specifically delineated exemptions.”
Judicial Watch, Inc. v. FBI, 522 F.3d 364, 365-66
(D.C. Cir. 2008). In FOIA cases, the district court reviews
the record de novo, 5 U.S.C. § 552(a)(4)(B),
and it views the facts and draws all inferences “in the
light most favorable to the requester.” Weisberg v.
U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C.
“vast majority” of FOIA cases can be decided on
motions for summary judgment. See Brayton v. Office of
U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). To
prevail on summary judgment, the movant agency must prove
that no material facts are in dispute, see Fed. R.
Civ. P. 56(a), and that each responsive record has either
been produced to the requestor or is exempt from disclosure.
See Weisberg v. U.S. Dep't of Justice, 627 F.2d
365, 368 (D.C. Cir. 1980). It is the agency's burden to
establish that any withheld information falls into one of
FOIA's enumerated exemptions. 5 U.S.C. §
552(a)(4)(B); see also Natural Res. Def. Council, Inc. v.
Nuclear Regulatory Comm'n, 216 F.3d 1180, 1190 (D.C.
Cir. 2000). “The justification for invoking a FOIA
exemption is sufficient if it appears logical or
plausible.” Murphy v. Exec. Office for U.S.
Attorneys, 789 F.3d 204, 209 (D.C. Cir. 2015) (citation
and internal quotation marks omitted).
D.C. Circuit instructs:
If an agency's affidavit describes the justifications for
withholding the information with specific detail,
demonstrates that the information withheld logically falls
within the claimed exemption, and is not contradicted by
contrary evidence in the record or by evidence of the
agency's bad faith, then summary judgment is warranted on
the basis of the affidavit alone.
ACLU v. U.S. Dep't of Def., 628 F.3d 612, 619
(D.C. Cir. 2011). EOUSA's declaration satisfies that
standard, and Linder has offered nothing to the contrary.
Linder focuses instead on his indictment. See
Pl.'s Opp'n. at 1. But under the FOIA, “this
Court's remedial powers are limited to injunctive relief
to remedy the improper withholding of agency records . . .
not . . . to make findings of fact and law as to whether
probable cause existed in [plaintiff's] criminal arrest
or prosecution.” Sanders v. Obama, 729
F.Supp.2d 148, 158 (D.D.C. 2010), aff'd sub nom.
Sanders v. U.S. Dep't of Justice, No. 10-5273, 2011
WL 1769099 (D.C. Cir. Apr. 21, 2011) (citation omitted).
Exemption 3 applies to matters that are “specifically
exempted from disclosure by [another] statute” if that
statute “requires that the matters be withheld from the
public in such a manner as to leave no discretion on the
issue” or “establishes particular criteria for
withholding or refers to particular types of matters to be
withheld.” 5 U.S.C. § 552(b)(3). Rule 6(e) of the
Federal Rules of Criminal Procedure prohibits government
attorneys and other listed “persons” from
“disclos[ing] a matter occurring before the grand jury,
” Fed. R. Crim. P. 6(e)(2)(B), save exceptions listed
under paragraph (e)(3). While not a statute, the rule
“qualifies as one under FOIA because the Congress has
enacted it into positive law.” Murphy, 789
F.3d at 206 (citations omitted). As a result,
“information related to a grand jury matter may be
withheld under exemption 3 ‘if the disclosed material
would tend to reveal some secret aspect of the grand
jury's investigation[.]'” Id. (quoting
Hodge v. FBI, 703 F.3d 575, 580 (D.C. Cir. 2013)).
“A tendency need only make a result more likely.”
Id. at 210.
FOIA Exemption 3, EOUSA's declarant explains that
“the Government did not request to review the grand
jury transcript . . . because doing so would result in the
impermissible disclosure of the inner workings of the grand
jury investigation.” Francis Decl. ¶ 13. See
United States v. Sells Eng'g, Inc., 463 U.S. 418,
427 (1983) (holding that an excepted “(A)(i) disclosure
[under Crim. Rule 6(e)(3)] is limited to use by those
[government] attorneys who conduct the criminal matters to
which the materials pertain”). She posits that
“the grand jury transcript of a specific witness would
reveal the inner workings and direction of the grand jury by
revealing” the witness' knowledge “at the
time of his/her testimony during the Government's grand
jury investigation[.]” Francis Decl. ¶ 13. This,
in turn, “could allow Plaintiff [and the public at
large] to ascertain what, if any additional steps . . . the
Government took during the course of its grand jury
investigation, which were meant to be protected from
disclosure pursuant to Rule 6(e).” Id.;
see Stonehill v. IRS, 558 F.3d 534, 538-39 (D.C.
Cir. 2009) (differentiating FOIA disclosures that “must
be made available to the public as a whole” from
“information disclosed during discovery [and] limited
to the parties”). The declarant also explains that
“the information contained in this type of material is
inextricably intertwined with secret aspects of the grand
jury process, ” such that the entire record would be
protected from disclosure. Francis Decl. ¶ 13.
jury testimony is quintessentially Exemption 3 material
because it is “protected from disclosure by Rule
6(e).” Murphy, 789 F.3d at 211; see Moore
v. Valder, 65 F.3d 189, 197 (D.C. Cir. 1995)
(“Disclosing grand jury testimony to unauthorized third
parties . . . is not a discretionary activity nor is it
inextricably tied to matters requiring the exercise of
discretion.”); Boyd v. Exec. Office for U.S.
Attorneys, 87 F.Supp.3d 58, 83 (D.D.C. 2015)
(“grand jury testimony is precisely the type of
information that ...