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Abakporo v. Executive Office for United States Attorneys

United States District Court, District of Columbia

March 5, 2019

IFEANYICHUKWU ABAKPORO, Plaintiff,
v.
EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, Defendant.

          MEMORANDUM OPINION

          TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE.

         Plaintiff Ifeanyichukwu Abakporo, a federal prisoner proceeding pro se and in forma pauperis, filed this lawsuit under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking certain records from Defendant Executive Office of United States Attorneys (EOUSA). Specifically, he requests records about the dates on which the term of the grand jury that returned an indictment against him was extended, as well as any court orders relating to those extensions. EOUSA, for its part, has not undertaken a search for responsive records, since in its view, the records are subject to FOIA's Exemption 3, which covers “matters specifically exempted from disclosure by statute, ” including grand-jury information. Both Abakporo, ECF No. 12, and EOUSA, ECF No. 17, have moved for summary judgment. For the reasons explained below, the Court will grant summary judgment for Abakporo.[1]

         I. Factual and Procedural Background

         Abakporo alleges that he was indicted by a grand jury sitting in the Southern District of New York on April 26, 2012, and that the government secured three superseding indictments against him, with the last being returned on May 2, 2013. ECF No. 12 at 2. Subsequently, he claims, the government convicted him of three counts of mortgage fraud for which he is serving a 72-month sentence. Id. During his post-conviction proceedings, the government apparently represented to the District Court, [2] and the Second Circuit, [3] that the “records of the U.S. Attorney's Office of the Southern District of New York” indicate that the grand jury that returned the May 3, 2013 indictment “was empaneled on or about September 22, 2011, for an 18-month term and that its term was extended for three additional six-month terms, for a total term of 36 months.”

         On July 7, 2017, Abakporo directed a FOIA request to EOUSA, requesting (1) the dates on which the grand jury's term was extended from September 22, 2011, to May 2, 2013, and (2) any court orders effectuating those extensions, ECF No. 22-1 at 6. His request was motivated, apparently, by his belief that the grand jury term was not properly extended. ECF No. 1 ¶ 14. On August 11, 2017, EOUSA denied his request. ECF No. 1-1 at 1. In a letter to Abakporo, EOUSA informed him that “[g]rand jury material is exempt from mandatory release pursuant to 5 U.S.C. § 552(b)(3), which exempts from release ‘matters specifically exempted from disclosure by statute.'” ECF No. 1-1 at 1. For that reason, EOUSA asserted, because “Rule 6(e) of the Federal Rules of Criminal Procedure . . . provides that grand jury proceedings shall be secret, disclosure of grand jury information is prohibited by law.” ECF No. 1-1 at 1. Abakporo appealed this determination, but it was denied for the same reasons. ECF No. 1-1 at 3-7. On April 5, 2018, he filed this lawsuit, alleging that EOUSA wrongfully withheld the records at issue from him. ECF No. 1. The parties have each moved for summary judgment. ECF Nos. 12, 17. The sole question on which their motions turn is whether EOUSA has met its burden of proving that the records requested by Abakporo are properly subject to FOIA's Exemption 3.

         II. Legal Standard

         “Summary judgment is appropriately granted when, viewing the evidence in the light most favorable to the non-movants and drawing all reasonable inferences accordingly, no reasonable jury could reach a verdict in their favor.” Lopez v. Council on Am.-Islamic Relations Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016). “The evidence presented must show ‘that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” Id. (quoting Fed.R.Civ.P. 56(a)). “In the FOIA context, a district court reviewing a motion for summary judgment conducts a de novo review of the record, and the responding federal agency bears the burden of proving that it has complied with its obligations under the FOIA.” MacLeod v. U.S. Dep't of Homeland Sec., No. 15-cv-1792 (KBJ), 2017 WL 4220398, at *6 (D.D.C. Sept. 21, 2017) (citing 5 U.S.C. § 552(a)(4)(B)). “[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).

         If the agency has invoked any of FOIA's exemptions, “[t]he burden is on the agency to justify withholding the requested documents.” EPIC v. U.S. Dep't of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015). “Summary judgment is warranted on the basis of agency affidavits when the affidavits 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 by evidence of agency bad faith.” Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)). The agency cannot rely on “conclusory and generalized allegations of exemptions.” Morley v. CIA, 508 F.3d 1108, 1115 (D.C. Cir. 2007) (quoting Founding Church of Scientology of Wash., D.C., Inc. v. Nat'l Sec. Agency, 610 F.2d 824, 830 (D.C. Cir. 1979)).

         III. Analysis

         Exemption 3 covers records that are “specifically exempted from disclosure by 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). To successfully invoke this exemption, EOUSA “need only show that the statute claimed is one of exemption as contemplated by Exemption 3 and that the withheld material falls within the statute.” Larson, 565 F.3d at 865 (citation omitted).

         EOUSA asserts this exemption based on Federal Rule of Criminal Procedure 6(e), which bars the disclosure of matters occurring before a grand jury. See Fed. R. Crim. P. 6(e)(2)(B). Because Congress affirmatively enacted it, Rule 6(e) is recognized as a “statute” for Exemption 3 purposes. See Fund for Constitutional Gov't v. Nat'l Archives & Records Serv., 656 F.2d 856, 867 (D.C. Cir. 1981). Rule 6(e) does not prevent disclosure of all information related to a grand jury; the relevant test is whether disclosure “tend[s] to reveal some secret aspect of the grand jury's investigation, [such as] the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.” Lopez v. U.S. Dep't of Justice, 393 F.3d 1345, 1349 (D.C. Cir. 2005) (internal quotation marks omitted).

         Abakporo is entitled to summary judgment because EOUSA has not demonstrated that the dates the grand jury's term was extended, or any court orders authorizing those extensions, “tend to reveal some secret aspect of the grand jury's investigation” so that they are covered by Exemption 3. Id.

         First, there is no self-evident reason why this would be so. The records and information at issue appear to concern the grand jury's administrative procedures, as opposed to the substance of any specific investigation. As a result, it is hard to see how those materials would tend to reveal information such as “the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, [or] the deliberations or questions of jurors.” Id. This is all the more so because the government has already disclosed that the relevant grand jury was “empaneled on or about September 22, 2011, for an 18-month term and that its term was extended for three additional six-month terms, for a total term of 36 months.” See ECF No. 22-1 at 2 n.2. The specific dates the grand jury's term was extended, and any related court orders doing so, would appear to reveal little beyond that already-public information.

         Second, the declaration submitted by EOUSA in support of its invocation of Exemption 3 offers no explanation as to how these dates, or the orders reflecting them, would tend to reveal a secret aspect of the grand jury's investigation.[4] The declaration simply asserts, in a conclusory and generalized manner, that “releasing [the] information . . . would run the risk of piercing [the] grand jury cloak of secrecy by revealing information contemplated by the determining body.” ECF No. 17-1 at 4. The declaration does not describe how disclosing the information at issue would pierce the cloak of secrecy, or why doing so would reveal secret grand-jury information to Abakporo. The declaration is thus of little help to EOUSA in ...


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