Toensing v. United States Department of Justice

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

VICTORIA TOENSING, et al.

Plaintiffs,

Civil Action No. 11-1215 (BAH)

v.

Judge Beryl A. Howell

UNITED STATES

DEPARTMENT OF JUSTICE,

Defendant.

MEMORANDUM OPINION

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

1

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 e-

mails 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

2

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

3

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 improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B).

To protect “legitimate governmental and private interests [that] could be harmed by

release of certain types of information,” United Techs. Corp. v. U.S. Dep’t of Def., 601 F.3d 557,

559 (D.C. Cir. 2010) (internal quotation marks omitted), Congress included nine exemptions

permitting agencies to withhold information from FOIA disclosure. See 5 U.S.C. § 552(b).

“These exemptions are explicitly made exclusive, and must be narrowly construed.” Milner v.

U.S. Dep’t of the Navy, 131 S. Ct. 1259, 1262 (2011) (citations and internal quotation marks

omitted); see also Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir.

2010) (“FOIA allows agencies to withhold only those documents that fall under one of nine

specific exemptions, which are construed narrowly in keeping with FOIA’s presumption in favor

4

of disclosure.”) (citations omitted). When a FOIA requester properly exhausts its administrative

remedies, it may file a civil action challenging an agency’s response to its request. See 5 U.S.C.

§ 552(a)(4)(B); Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). Once such an action is filed,

the agency generally has the burden of demonstrating that its response to the plaintiff’s FOIA

request was appropriate. See id. at 678.

B. Summary Judgment

It is typically appropriate to resolve FOIA cases on summary judgment. See Brayton v.

Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011) (“the vast majority of FOIA

cases can be resolved on summary judgment”). When an agency’s response to a FOIA request is

to withhold responsive records, either in whole or in part, the agency “bears the burden of

proving the applicability of claimed exemptions.” Am. Civil Liberties Union v. U.S. Dep’t of

Def. (“ACLU/DOD”), 628 F.3d 612, 619 (D.C. Cir. 2011). The government may sustain its

burden of establishing that requested records were appropriately withheld through the

submission of declarations detailing the reason that a FOIA exemption applies, along with an

index, as necessary, describing the materials withheld. See, e.g., ACLU/DOD, 628 F.3d at 619;

Students Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 840 (D.C. Cir. 2001); Vaughn v.

Rosen, 484 F.2d 820, 827–28 (D.C. Cir. 1973). “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/DOD, 628 F.3d at 619. As the D.C.

Circuit recently explained, in FOIA cases “‘[s]ummary judgment may be granted on the basis of

agency affidavits if they contain reasonable specificity of detail rather than merely conclusory

statements, and if they are not called into question by contradictory evidence in the record or by

5

evidence of agency bad faith.’” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215

(D.C. Cir. 2013) (quoting Consumer Fed’n of Am. v. U.S. Dep’t of Agric., 455 F.3d 283, 287

(D.C. Cir. 2006) and Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994)). While the burden

remains on the moving party to demonstrate that there is an “absence of a genuine issue of

material fact” in dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), in FOIA cases, “an

agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or

‘plausible.’” ACLU/DOD, 628 F.3d at 619 (quoting Larson v. Dep’t of State, 565 F.3d 857, 862

(D.C. Cir. 2009)).

III. DISCUSSION

The defendant is withholding in full six responsive documents found in the

supplementary search under FOIA Exemption 3, which prohibits disclosure of grand jury

protected material under Federal Rule of Criminal Procedure 6(e), and in part under FOIA

Exemption 7(C) as documents “compiled for law enforcement purposes . . . to the extent that the

production of such law enforcement records or information could reasonably be expected to

constitute an unwarranted invasion of personal privacy.” See 5 U.S.C. §§ 552(b)(3), (b)(7)(C);

Suppl. Vaughn Index. Documents One through Five are also being withheld in full pursuant to

FOIA Exemption 5, as privileged attorney work product and protected by the deliberative

process privilege. See 5 U.S.C. § 552(b)(5); Suppl. Vaughn Index. Since Documents One

through Five are properly withheld under the attorney work product privilege encompassed by

Exemption 5, it is unnecessary to review the defendant’s other grounds for withholding those

documents. Similarly, Document Six is properly withheld under Exemption 3, which makes

discussion of this document’s withholding under Exemption 7(C) unnecessary.

6

A. Withholdings Under Exemption 5 (Documents 1-5)

Under Exemption 5, agencies are not required to disclose in response to a FOIA request

“matters that are . . . inter-agency or intra-agency memorandums or letters which would not be

available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. §

552(b)(5). Two conditions must be met for a record to qualify for this exemption and be

withheld: “its source must be a Government agency, and it must fall within the ambit of a

privilege against discovery under judicial standards that would govern litigation against the

agency that holds it.” U.S. Dep’t of Interior v. Klamath Water Users Protective Ass’n (“Klamath

Water”), 532 U.S. 1, 8 (2001); see also Nat’l Inst. of Military Justice v. Dep’t of Defense, 512

F.3d 677, 680, 680 n.4 (D.C. Cir. 2008) (noting records withheld under Exemption 5 must be

inter- or intra-agency records “‘unavailable by law’ under one of the established civil discovery

privileges.”). The Supreme Court has explained that “the first condition of Exemption 5 is no

less important than the second; the communication must be ‘inter-agency or intra-agency.’”

Klamath Water, 532 U.S. at 9. In the instant case, neither party disputes that Documents One

through Five are “inter-agency or intra-agency memorandums,” nor does the supplemental

Vaughn index indicate otherwise. See Suppl. Vaughn Index at 1–2. The only dispute, therefore,

is whether these five documents are properly withheld under a “privilege against discovery.”

The second condition incorporates those civil discovery privileges enjoyed by any private

party in litigation, including the attorney-client and attorney work product privileges. See

Klamath Water, 532 U.S. at 8; NLRB v. Sears, Roebuck & Co. (“Sears”), 421 U.S. 132, 149

(1975); Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006);

Rockwell Int’l Corp. v. U.S. Dep’t of Justice, 235 F.3d 598, 601 (D.C. Cir. 2001). Nevertheless,

“[i]n keeping with the Act’s policy of the fullest responsible disclosure . . . Congress intended

Exemption 5 to be as narrow as is consistent with efficient Government operations.” FTC v.

7

Grolier, Inc., 462 U.S. 19, 23 (1983); see also Sears, 421 U.S. at 149 (“[I]t is reasonable to

construe Exemption 5 to exempt those documents, and only those documents, normally

privileged in the civil discovery context.”); Coastal States Gas Corp. v. U.S. Dep’t of Energy

(“Coastal States”), 617 F.2d 854, 862 (D.C. Cir. 1980) (“The clear purpose of FOIA is to assure

that the public has access to all government documents, subject to only nine specific limitations,

to be narrowly interpreted.”).

The starting place for evaluating the scope of the attorney work product doctrine is

Federal Rule of Civil Procedure 26(b)(3), which protects “ordinarily,” those “documents and

tangible things that are prepared in anticipation of litigation or for trial by or for another party or

its representative . . .” FED. R. CIV. P. 26(b)(3)(A). As the Supreme Court explained, “[i]t makes

little difference whether a privilege is absolute or qualified in determining how it translates into a

discrete category of documents that Congress intended to exempt from disclosure under

Exemption 5. Whether its immunity from discovery is absolute or qualified, a protected

document cannot be said to be subject to ‘routine’ disclosure.” Grolier, 462 U.S. at 28. For

purposes of withholding FOIA requested records, the “test under Exemption 5 is whether the

documents would be ‘routinely’ or ‘normally’ disclosed upon a showing of relevance.” Id. at 26

(quoting Sears, 421 U.S. at 148-149); see also Williams & Connolly v. SEC, 662 F.3d 1240,

1243 (D.C. Cir. 2011) (“Although work product protection may be overcome for cause in civil

cases . . . any materials disclosed for cause are not ‘routinely’ or ‘normally’ discoverable and, for

that reason, are exempt under FOIA.”) (citation omitted); Stonehill v. IRS, 558 F.3d 534, 538-539

(D.C. Cir. 2009) (noting that “not all documents available in discovery are also available

pursuant to FOIA” since “case-specific exceptions can sometimes permit discovery of otherwise

privileged material”); Lardner v. U.S. Dep’t of Justice, No. Civ.A.03-0180, 2005 U.S. Dist.

8

LEXIS 5465, at *6 (D.D.C. Mar. 31, 2005) (citing the “divide between the rules of FOIA and

civil discovery,” and noting that “[t]here will be many cases in which a document should be

withheld under Exemption 5 of FOIA because it falls ‘within the ambit’ of a privilege, but the

document nonetheless would be discoverable in certain circumstances in civil litigation”).

In applying the work product doctrine, the D.C. Circuit has instructed that, it “should be

interpreted broadly and held largely inviolate.” Judicial Watch v. U.S. Dep’t of Justice, 432 F.3d

366, 369 (D.C. Cir. 2005). This is consistent with the policy underpinnings articulated by the

Supreme Court that “it is essential that a lawyer work with a certain degree of privacy, free from

unnecessary intrusion by opposing parties and their counsel.” Hickman v. Taylor, 329 U.S. 495,

510 (1947). The work product doctrine can apply to preparatory work performed not only by

attorneys, but also, in some circumstances by nonlawyers, United States v. Nobles, 422 U.S. 225,

238-239 (1975), and “does not distinguish between factual and deliberative material,” Martin v.

Office of Special Counsel, 819 F.2d 1181, 1187 (D.C. Cir. 1987). This is because, in the context

of work product, the risk is apparent that an attorney’s discussion of factual matters may reveal

his or her tactical or strategic thoughts. See Mervin v. FTC, 591 F.2d 821, 825–26 (D.C. Cir.

1978) (noting that “even the factual material segregated from attorney work-product is likely to

reveal some of the attorney’s tactical and strategic thoughts” and that while “pure statements of

fact” are not exempt “from disclosure by calling them attorney work-product . . . material which

might disclose an attorney’s appraisal of factual evidence is attorney work-product exempted

from disclosure by exemption 5”). Thus, “[a]ny part of [a document] prepared in anticipation of

litigation, not just the portions concerning opinions, legal theories, and the like, is protected by

the work product doctrine and falls under exemption 5.” Tax Analysts v. IRS, 117 F.3d 607, 620

(D.C. Cir. 1997); see also Judicial Watch, Inc. v. U.S. Dep’t of Justice, 800 F. Supp. 2d 202, 211

9

n.7 (D.D.C. 2011) (holding that distinction between “fact” work product and “opinion” work

product does not apply in FOIA context since protection of Exemption 5 extends to both).

The defendant asserts that Documents One through Five are properly withheld as attorney

work product because they “reflect such matters as trial preparation, trial strategy, legal

interpretations, and personal evaluations and opinions by Assistant United States Attorneys and

the United States Attorney pertinent to grand jury investigation and subpoenas relating to a third

party criminal case.” Decl. of John F. Boseker, Atty. Advisor, EOUSA, ¶ 52 (“Boseker Decl.”),

ECF No. 12-1; Suppl. Boseker Decl. ¶ 1–2. The description of each document confirms that

they were prepared “in anticipation of litigation” and were authored by DOJ Attorneys. See

Suppl. Vaughn Index at 1–2. For instance, the description of Document One indicates that the

document is “an intra-agency email discussing the request for authorization to subpoena

Plaintiffs and legal analysis regarding the grand jury subpoena’s issuance.” Id. Each of the other

document descriptions for Documents Two through Five indicates that they, too, are inter- or

intra-agency memoranda that contain legal analysis and attorney opinions. See id.

The plaintiffs’ primary objection to the defendant’s withholding is premised on alleged

misconduct committed by the U.S. Attorney’s office and that office’s alleged failure to follow

DOJ guidelines. See Pls.’ Mem. at 17–18, ECF No. 31–2; Decl. of Victoria Toensing

(“Toensing Decl.”) (Feb. 27, 2012) ¶¶ 45–46, ECF No. 31–4. 1 The plaintiffs detail the practices

they believe constitute misconduct, including the attempted tape recording of Plaintiff Toensing,

see Pls.’ Mem. at 4, attempts to intimidate and disqualify the plaintiffs, see Pls.’ Mem. at 5–6,

1

The plaintiffs also submitted a declaration from Hamilton P. Fox, III, another attorney involved in the litigation

that gave rise to the original subpoenas, to bolster their view of the U.S. Attorney’s alleged misconduct, since Fox

was also disqualified from representing a long-standing client, who was subject to the grand jury investigation. See

Decl. of Hamilton P. Fox, III (“Fox Decl.”) ¶¶ 6, 10, ECF No. 31–3. This declaration does not, however, provide

additional information about the propriety of the various exemptions claimed by the defendant and, as such, need not

be discussed further.

10

and grand jury subpoenas for information pertaining to the plaintiffs’ client, see id. While

attorney misconduct or unprofessional behavior may vitiate the work product doctrine in some

circumstances, see In re Sealed Case, 107 F.3d 46, 51 (D.C. Cir. 1997) (“[I]nterests in favor of

work product immunity are overcome when the client uses the attorney to further a crime or

fraud.”), in the FOIA context, such an argument is unavailing. As the defendant points out, after

Grolier, 462 U.S. at 28, courts need not consider whether certain documents might be

discoverable “in any particular litigation” before determining if the documents may be withheld

under Exemption 5. Rather, courts must determine if “the documents would be ‘routinely’ or

‘normally’ disclosed upon a showing of relevance.” Id. at 26. Quite simply, whether the people

who created these documents engaged in some misconduct or failed to comply with Department

of Justice guidelines is irrelevant to determining whether the documents are appropriately

withheld under Exemption 5, since exceptions to discovery privileges are not properly

considered under Exemption 5. Id.

Indeed, the defendant makes a strong argument on this score in its reply when it notes

that “[t]his case illustrates the wisdom of having such a ‘workable’ rule to govern work product

protection in FOIA cases.” Def.’s Reply Supp. Def.’s Mot. Summ. J. & Mem. Opp’n Pls.’ Mot.

Summ. J. (“Def.’s Reply”) at 10, ECF No. 32. If the Court were required to consider the

applicability of any possible exception to privileges asserted under Exemption 5, the result would

be protracted FOIA litigation in which the parties would have to brief, with evidentiary support,

myriad counter-factuals to determine whether a conceivable set of facts exist to overcome the

privilege. This would essentially require an examination of facts specific to the challenge to the

assertion of the privilege in order to resolve application of Exemption 5 in a FOIA case. It was

exactly this result about which the Supreme Court expressed concern in Grolier and which it

11

categorically rejected. See Grolier, 462 U.S. at 28. “Only by construing the exemption to

provide a categorical rule can the [FOIA’s] purpose of expediting disclosure by means of

workable rules be furthered.” Id.

The plaintiffs rely upon Moody v. IRS, 654 F.2d 795, 800 (D.C. Cir. 1981), a case that

pre-dates Grolier, to bolster their argument that exceptions to the attorney work product privilege

should apply to the invocation of the privilege under Exemption 5 in the FOIA context. See Pls.’

Mem. at 18.; Pls.’ Reply to Def.’s Reply Supp. Mot. Summ. J. & Opp’n to Pls.’ Cross-Mot.

Summ. J. (“Pls.’ Reply”) at 9, ECF No. 35. Moody is an excellent example of what the Supreme

Court was attempting to prevent with Grolier. In Moody, the FOIA requestor challenged the

withholding under Exemption 5’s work product doctrine of a responsive document on grounds

that the document was “the fruit of impermissible legal conduct,” arguing that before application

of the doctrine to “cover-up” the allegedly unprofessional activities a determination had to be

made “whether the actions of the [government] attorney in fact violated professional standards.”

Moody, 654 F.2d at 799-800. The D.C. Circuit agreed and remanded the case to the district court

with instructions to conduct “an evaluation of the attorney’s conduct and, if it is found in

violation of professional standards, a determination of whether his breach of professional

standards vitiated the work product privilege otherwise attributable” to one of the documents at

issue. Id. at 801.

Thus, Moody demonstrated the accuracy of the Supreme Court’s animating concern in

Grolier that “[t]he logical result of [the plaintiffs’] position is that whenever work-product

documents would be discoverable in any particular litigation, they must be disclosed to anyone

under the FOIA.” Grolier, 462 U.S. at 28. The Court explained that “[i]t is not difficult to

imagine litigation in which one party’s need for otherwise privileged documents would be

12

sufficient to override the privilege but that does not remove the documents from the category of

the normally privileged.” Id. (emphasis in original). 2 Thus, in the instant case, even if

misconduct occurred in the U.S. Attorney’s office pertaining to the plaintiffs’ subpoenas, such

misconduct cannot vitiate the attorney work product privilege for the purposes of the FOIA.

The plaintiff also argues that the supplemental Vaughn index is insufficient to determine

whether the documents listed are subject to the attorney work product privilege. See Pls.’ Reply

at 7. The plaintiffs contend that the supplemental Vaughn index does not include “dates of the

documents” or the names of the documents’ authors, and that the “[d]escriptions of the

documents . . . are nothing more than cut, pasted, and edited boilerplate for each of the six (6)

documents.” Id. at 4. This argument, too, is unavailing. It is true that the Vaughn index is

sparse in the details regarding the names of the documents’ authors and recipients, as well as the

dates when those documents were created. See Suppl. Vaughn Index at 1–2. Nevertheless, a

Vaughn index need only “indicate[] in some descriptive way which documents the agency is

withholding and which FOIA exemption it believes apply.” ACLU v. CIA, 710 F.3d 422, 432

(D.C. Cir. 2013). The D.C. Circuit has made it clear that “a Vaughn index may also contain brief

or categorical descriptions when necessary to prevent the litigation process from revealing the

very information the agency hopes to protect.” Id. (citing Judicial Watch, Inc. v. FDA, 449 F.3d

141, 146 (D.C. Cir. 2006). All that is necessary is a Vaughn index that is “‘sufficiently distinct

to allow a court to determine . . . whether the specific claimed exemptions are properly applied.’”

2

The plaintiffs contend that the D.C. Circuit opinion in Grolier supports their position and that Moody was not

abrogated by Grolier, noting that, on one of Moody’s return trips to the D.C. Circuit, the case was remanded with

instructions to “determine if Grolier actually applied to the facts of [Moody]” and if “‘Grolier does not apply, [the

district court] should reconsider whether [] conduct may have vitiated the work product privilege.’” Pls.’ Reply at

10 n.7. The D.C. Circuit opinion in Grolier on which the plaintiffs rely was reversed by the Supreme Court. See

Grolier, 462 U.S. at 28.

13

Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994) (quoting Vaughn v. United States, 936 F.2d

862, 868 (6th Cir. 1991)).

In the instant matter, the dates of the documents and the names of their authors are

irrelevant to a determination of whether the documents are protected as attorney work product.

Each document is identified as having been prepared by Department of Justice attorneys and

each document’s description adequately explains the nature of the document and why it is

subject to the privilege. Thus, the defendant has shown, based on the supplemental Vaughn

index provided, that Documents One through Five would be shielded as attorney work product in

civil litigation, barring vitiation due to an exception or other circumstances, and, as such, are

exempt from disclosure under the FOIA.

B. Withholding Under Exemption 3 (Document 6)

The FOIA’s Exemption 3 applies to agency records “specifically exempted from

disclosure by statute . . . if that statute (A)(i) requires that the matters be withheld from the public

in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for

withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). For

the purposes of this section, Federal Rule of Criminal Procedure 6(e), which prohibits the release

of material that “would ‘tend to reveal some secret aspect of the grand jury’s investigation,’

including ‘the identities of witnesses or jurors, the substance of testimony, the strategy or

direction of the investigation,’ or ‘the deliberations or questions of jurors,’” is a “statute.” See

Hodge v. FBI, 703 F.3d 575, 580 (D.C. Cir. 2013) (quoting Senate of the Commonwealth of P.R.

v. U.S. Dep’t of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987)). If an agency’s “explanation shows

that the material is covered by Rule 6(e), the material is in turn covered by Exemption 3.” Id.

In the instant matter, Document Six “discusses the grand jury investigation [related to the

plaintiffs’ FOIA request] in detail. The substance of the filing concerns matters occurring before

14

the grand jury, and has attachments supporting the [judicially] sealed filing.” Suppl. Vaughn

Index at 2. The plaintiffs argue that since this document pertains to a grand jury subpoena that

has been made public, including during extensive litigation over the plaintiffs’ motion to quash,

Document Six would not reveal any secret aspect of grand jury deliberations. See Pls.’ Reply at

5. Moreover, the plaintiffs argue that “[t]he decision to subpoena counsel, where made based on

false statements and carried out in violation of the DOJ Guidelines, should not be protected by

FOIA exemptions.” Id.

The plaintiffs’ belief that they were wrongly subpoenaed is simply irrelevant to the

applicability of exemptions under the FOIA. A sealed court filing that “discussed the grand jury

investigation in detail” would clearly “tend to reveal some secret aspect of the grand jury’s

investigation.” See Hodge, 703 F.3d at 580. If taken to its logical conclusion, the plaintiffs’

argument would allow the release, under the FOIA, of grand jury records pertaining to an

indictment or grand jury subpoena as soon as either such document was made public, a result not

sanctioned under the limited disclosure exceptions set out in Federal Rule of Criminal Procedure

6(e)(3). See FED. R. CR. P. 6(e)(3) (enumerating limited circumstances under which grand jury

information may be released). As such, Document Six is properly withheld as prohibited from

disclosure under Rule 6(e) and, consequently, exempt from disclosure under FOIA Exemption 3.

C. The Withheld Documents Are Not Reasonably Segregable

The defendant has averred that all of the withheld documents are not reasonably

segregable and must be withheld in full. See Suppl. Vaughn Index at 1–2. In the FOIA context

“[i]f a document is fully protected as work product, then segregability is not required.” Judicial

Watch, Inc. v. U.S. Dep’t of Justice, 432 F.3d 366, 371 (D.C. Cir. 2005). Since Documents One

through Five are properly withheld as attorney work product, it is unnecessary to further consider

their segregability. As for Document Six, it is clear from the supplemental Vaughn index that the

15

substance of the document concerns matters protected by Federal Rule of Criminal Procedure

6(e), thus supporting the defendant’s assertion that this document is not segregable. See Suppl

Vaughn Index at 2.

The plaintiffs request that this Court review the disputed documents in camera before

ruling on either party’s Motion for Summary Judgment. Pls.’ Mem. at 18–19. Since the

supplemental Vaughn index is sufficiently clear to show that the six documents are properly

withheld, such a review is unnecessary.

IV. CONCLUSION

For the foregoing reasons, the defendant’s Supplemental Motion for Summary Judgment,

ECF No. 29, is granted and the plaintiffs’ Cross Motion for Summary Judgment, ECF No. 31, is

denied.

An appropriate Order accompanies this Memorandum Opinion.

Digitally signed by Beryl A. Howell

DN: cn=Beryl A. Howell, o=District

Date: November 14, 2013 Court for the District of Columbia,

ou=District Court Judge,

email=howell_chambers@dcd.usc

ourts.gov, c=US

__________________________

Date: 2013.11.14 14:19:46 -05'00'

BERYL A. HOWELL

United States District Judge

16