Murphy v. Executive Office for United States Attorneys

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 12, 2015 Decided June 16, 2015

No. 14-5044

JAMES E. MURPHY,

APPELLANT

v.

EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-00573)

Ishan K. Bhabha, appointed by the court, argued the cause

for the appellant. David W. DeBruin and Paul M. Smith,

appointed by the court, were with him on brief.

James E. Murphy, pro se, filed the brief for the appellant.

Peter R. Maier, Assistant United States Attorney, argued

the cause for the appellee. Ronald C. Machen Jr., United

States Attorney at the time the brief was filed, and R. Craig

Lawrence, Assistant United States Attorney, were with him on

brief. Dionne S. Shy, Assistant United States Attorney,

entered an appearance.

2

Before: HENDERSON, ROGERS and MILLETT, Circuit

Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: James

Murphy is a federal prisoner. He submitted a request under

the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to the

Executive Office for United States Attorneys (EOUSA), a part

of the United States Department of Justice. See Harris v.

Gonzales, 488 F.3d 442, 443 (D.C. Cir. 2007). FOIA requires

federal agencies to produce “records” upon request unless one

of nine statutory exemptions applies. 5 U.S.C.

§ 552(a)(3)(A). Murphy sought grand jury information for

two criminal cases. The EOUSA gave Murphy most of the

information that he requested but it declined to disclose the

dates and times of day that the grand jury met to hear testimony

and consider evidence in the two cases. The EOUSA invoked

exemption 3 to justify its non-disclosure. Murphy

contends—unsurprisingly—that exemption 3 is inapplicable

and filed suit to compel the EOUSA to disclose the withheld

material. The district court ultimately held that exemption 3

was properly invoked and granted summary judgment to the

EOUSA. We affirm.

I

FOIA implements “a general philosophy of full agency

disclosure.” DOJ v. Reporters Comm. for Freedom of the

Press, 489 U.S. 749, 754 (1989). The statute requires federal

agencies to make “records promptly available” when an

individual submits a “request for records which (i) reasonably

describes such records and (ii) is made in accordance with

published rules.” 5 U.S.C. § 552(a)(3)(A). An agency,

however, can reject the request if it “fall[s] within one of nine

3

exemptions.” Milner v. Dep’t of Navy, 131 S. Ct. 1259, 1262

(2011); see 5 U.S.C. § 552(b)(1)–(9). The United States

Supreme Court has stated that the exemptions must be

“narrowly construed” because “the mandate of the FOIA calls

for broad disclosure of Government records.” DOJ v. Julian,

486 U.S. 1, 8 (1988) (alteration omitted). The Court has also

cautioned, however, that each exemption must be given

“meaningful reach and application.” John Doe Agency v.

John Doe Corp., 493 U.S. 146, 152 (1989).

The exemption relevant here is exemption 3, which

permits an agency to withhold records that are “specifically

exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3).

We have recognized that “requests for documents related to

grand jury investigations implicate FOIA’s third exemption.”

Lopez v. DOJ, 393 F.3d 1345, 1349 (D.C. Cir. 2005). Rule

6(e) of the Federal Rules of Criminal Procedure prohibits

certain persons designated therein (including government

attorneys) from “disclos[ing] a matter occurring before the

grand jury,” FED. R. CRIM. P. 6(e)(2)(B), and, although a rule is

not generally considered to be a statute, it qualifies as one

under FOIA because the Congress has enacted it into positive

law. See Fund for Constitutional Gov’t v. Nat’l Archives and

Records Serv., 656 F.2d 856, 867–68 (D.C. Cir. 1981) (citing

Pub. L. No. 95-78, § 2(a), 91 Stat. 319 (1977)). Hence,

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,

including the identities of witnesses.” Hodge v. FBI, 703 F.3d

575, 580 (D.C. Cir. 2013) (quotation marks omitted).

In 2008, Murphy was charged with distribution,

possession and conspiracy to distribute and possess heroin and

crack cocaine. See United States v. Murphy, 460 F. App’x

122, 123 (3d Cir. 2012). He was convicted of both counts

4

after a two-day jury trial and sentenced to 360 months’

imprisonment. Id. In 2013, Murphy submitted two FOIA

requests to the EOUSA for “information and documents.”

Joint Appendix (JA) 25, 31. His first FOIA request asked for:

disclosure of the dates that the grand jury

convened in reference to case # 1:08-CR-00433

and case # 1:08-CR-314 filed in U.S. District

Court for the Middle District of Pennsylvania

including the names [sic] of the Judge who

summoned the grand jury, the date the

indictments were returned, the date they were

discharged, the starting and ending date of the

grand jury’s term, and a certified copy of the

courts [sic] minute entries.

Id. at 39. Case number 08-CR-00433 is Murphy’s criminal

case and case number 08-CR-00314 is a criminal case

involving Richard Byrd.

Approximately two months later, Murphy submitted a

second FOIA request that sought:

disclosure of the dates the grand jury issued the

indictments pertaining to criminal No.

1:08-CR-314 and 1:08-CR-0433 . . . including

the dates and times of sessions the grand jury

convened, whether it was summoned pursuant

to Fed. R. Crim. P. 6(a), or 18 U.S.C. 1331, and

the certified letter requesting the special grand

jury . . . the caption of the indictment . . . [and]

an unredacted copy of the indictment of Case

No. 1:08-CR-314 pursuant to Fed. R. Crim. P.

49.1(b)(9).

5

Id. at 42. Before the EOUSA responded to his requests,

Murphy filed suit in federal district court. 1 He challenged the

EOUSA’s invocation of exemption 3 and alleged that the grand

jury indictments were inaccurate and that the EOUSA’s search

for records was inadequate. He asked the court to order the

EOUSA to produce the “agency records previously requested

by [him].” Am. Compl. ¶ 1.

After Murphy filed his complaint, the EOUSA responded

to both of his FOIA requests. It first told Murphy that it

intended to disclose “all records required to be released, or

considered appropriate for release as a matter of discretion.”

JA 45. These included “the date the grand jury was impaneled

and expired; the name of the judge who supervised the grand

jury; [and] the date on which the grand jury was convened and

returned an indictment for each particular criminal case.” Id.

at 37. It also disclosed that both of the “grand juries . . . were

summoned pursuant to Fed. R. Crim. P. 6(a).” Id. at 47.

Other than its disclosure of the date on which the grand jury

issued indictments, the EOUSA declined to provide the

specific dates and “times the grand juries convened” between

the date of empanelment and the date each grand jury was

discharged “in order to protect the identity of witnesses and the

1

Murphy properly filed suit before the EOUSA responded to his

requests because he had constructively exhausted his administrative

remedies. “As a general matter, a FOIA requester must exhaust

administrative appeal remedies before seeking judicial redress.”

Citizens for Responsibility and Ethics in Wash. v. FEC, 711 F.3d

180, 182 (D.C. Cir. 2013). But a requester “shall be deemed to have

exhausted his administrative remedies with respect to [his] request”

if the agency does not respond to the FOIA request within 20

business days. 5 U.S.C. § 552(a)(6)(A)(i), (C)(i). The EOUSA

did not timely respond to Murphy’s FOIA requests and Murphy then

began this litigation.

6

secrecy of the grand jury proceedings.” Id. It invoked

exemptions 3 and 7(C) to support its decision. 2 Id.

Less than one month after responding to Murphy’s second

FOIA request, the EOUSA moved for summary judgment.

The district court granted the motion in part. See Murphy v.

EOUSA, 11 F. Supp. 3d 1, 3 (D.D.C. 2013). It held that

Murphy’s claims regarding the accuracy of the records and the

adequacy of the government’s search were premised on a

“misunderstanding.” Id. at 5. According to the court,

Murphy’s claim that some of the records were inaccurate and

that others did not disclose what he “expected to find” did not

amount to a FOIA violation. Id. It then found the EOUSA’s

declaration, executed by EOUSA attorney advisor Kathleen

Brandon, insufficient because it contained only one “obscure

statement” related to exemption 3. Id. at 6. The court

therefore ordered the EOUSA to disclose each date and the

times of day on each date that the grand jury convened to

consider Murphy’s and Byrd’s cases. 3 Id. at 7.

2

Exemption 7(C) permits an agency to withhold records “compiled

for law enforcement purposes” if disclosure of such records “could

reasonably be expected to constitute an unwarranted invasion of

personal privacy.” 5 U.S.C. § 552(b)(7). Because we hold that the

EOUSA properly invoked exemption 3, we do not address whether it

also properly invoked exemption 7(C). See Larson v. Dep’t of

State, 565 F.3d 857, 862–63 (D.C. Cir. 2009) (“agencies may invoke

the exemptions independently and courts may uphold agency action

under one exemption without considering the applicability” of

others).

3

So that the record is clear, we describe exactly the information

that was disclosed to Murphy. Murphy requested and received the

date the grand jury was empaneled, the date the grand jury returned

indictments and the date the grand jury was discharged. In his

7

second FOIA request, Murphy explicitly requested “the dates and

times of sessions the grand jury convened” whenever the grand jury

met to consider his case and Byrd’s case during the approximately

six-month period between empanelment and discharge. JA 42; see

also supra pp. 4–6 (describing Murphy’s FOIA requests and

EOUSA’s response thereto). The EOUSA did not disclose that

information to Murphy but did disclose it to the district court in

camera. See Murphy v. EOUSA, 11 F. Supp. 3d 7, 9 (D.D.C. 2014)

(district court reviewed in camera “the documents which contain . . .

the requested times that the grand jury convened”). The EOUSA

also disclosed the same material to this Court in camera. The

EOUSA counsel confirmed in a post-argument letter to this Court

that the dates and times of day the grand jury met to consider

Murphy’s and Byrd’s cases have not been disclosed to Murphy.

Therefore, the only information in dispute—and the only

information Murphy has not yet received—covers the dates and

times of day the grand jury met to consider Murphy’s and Byrd’s

cases as distinct from the dates the grand jury issued its indictments

in the two cases.

What confusion may have existed is likely due to Murphy’s use

of “convene.” “Convene” usually refers to the empanelment of the

grand jury. See Convene, BLACK’S LAW DICTIONARY (10th ed.

2014) (“To call together, esp. for a formal meeting; to cause to

assemble.”); see also, e.g., In re Sealed Case, 199 F.3d 522, 523

(D.C. Cir. 2000) (independent counsel “convened a grand jury to

consider evidence”). The EOUSA disclosed that information to

Murphy. JA 45 (releasing the date the grand jury was empaneled to

Murphy). But he also asked for the “dates and times of sessions the

grand jury convened” to consider both his case and Byrd’s case. Id.

at 42 (emphasis added). We take him to mean the dates and times

the grand jury met to consider evidence or to deliberate in his and

Byrd’s cases separate from the dates the grand jury indictments

issued. Amicus agrees with our interpretation of Murphy’s FOIA

request. See Amicus Br. 16 (Murphy has “the dates the grand juries

began their sessions” but not the dates and times of day “the grand

juries were in session” after empanelment).

8

Both parties moved for reconsideration. See Murphy, 11

F. Supp. 3d at 8. The EOUSA also filed a supplemental

declaration, again executed by Brandon, in support of its

motion. The district court noted that Murphy’s motion for

reconsideration contained the same arguments he had

previously made regarding the adequacy of the search and the

accuracy of the records. See id. at 8–9. Because he did not

identify “an intervening change in the law,” “new evidence not

previously available” or “a clear error in the first order,” the

district court denied his motion. Id.

The district court, however, granted the EOUSA’s motion

for reconsideration after reviewing the withheld material in

camera and concluding that it “contain[ed] information that

would reveal secret aspects of a grand jury investigation.” Id.

at 9. Additionally, the court held that the withheld material

was “inextricably intertwined” with non-exempt information,

making it infeasible to segregate and produce any unprotected

information. Id. Accordingly, it granted summary judgment

to the EOUSA. Id. Murphy timely appealed. We appointed

amicus curiae to present arguments in support of Murphy’s

position.

II

We review de novo the district court’s grant of summary

judgment. McKinley v. Bd. of Governors of Fed. Reserve

Sys., 647 F.3d 331, 335 (D.C. Cir. 2011). Our task on appeal

is to “ascertain whether the agency has sustained its burden of

demonstrating that the documents requested are exempt from

disclosure under the FOIA.” Newport Aeronautical Sales v.

Dep’t of Air Force, 684 F.3d 160, 164 (D.C. Cir. 2012)

(alteration omitted). An agency can meet this burden by

submitting “affidavits [that] describe the justifications for

nondisclosure with reasonably specific detail” and

9

“demonstrate that the information withheld logically falls

within the claimed exemption.” Larson, 565 F.3d at 862.

We have emphasized that an agency’s task is not herculean.

The justification for invoking a FOIA exemption is sufficient if

it “appears logical or plausible.” Id. (quotation marks

omitted). We believe the EOUSA’s basis for invoking

exemption 3 is both logical and plausible.

The EOUSA’s supplemental Brandon Declaration

explains why releasing the dates and times of day the grand

jury convened to consider Murphy’s and Byrd’s cases could

reveal grand jury witness identities. Assume that a suspect

knows his girlfriend witnessed the crime he is suspected of

committing. Also assume (plausibly) that he can discover

from friends or family members whether his girlfriend was

absent from work or school on a particular day and time.

Once convicted, the suspect wants to know whether his

girlfriend in fact provided testimony to the grand jury. If the

government discloses the dates and times of day that the grand

jury convened, he can compare those dates and times with his

girlfriend’s corresponding absences. If the grand jury met on

a day and time that his girlfriend missed school or work, he

could infer that she could have testified before the grand jury.

See JA 56–57 (providing similar example). 4

4

This is not the only scenario that could involve a risk of disclosing

the identity of a grand jury witness. The same risk could occur if

the criminal defendant and the suspected grand jury witness are

cellmates. Knowing when the grand jury met could provide an easy

way for him to determine whether his cellmate was likely providing

testimony. If the grand jury met on a day and at a time that the

cellmate was absent, the inference is plain: His cellmate could have

testified. Moreover, cellmates’ close proximity to one another

enhances the opportunity for (and success of) retaliation, which

10

The EOUSA’s position is all the more reasonable because

it is based on extensive experience. The EOUSA declarant

was an assistant United States Attorney with more than twenty

years’ experience handling criminal cases in federal court. Id.

at 56. She averred that she “went to great lengths” to keep

grand jury proceedings secret in order to “protect the identity

of the witnesses.” Id. Secrecy is essential because, in her

experience, “defendants often went to great lengths to discover

the identity of witnesses in their cases, both before and after

trial.” Id. at 57. We cannot lightly brush aside both the logic

and experience underlying the EOUSA’s decision to withhold

the requested information. Cf. McDonnell Douglas Corp. v.

Dep’t of the Air Force, 375 F.3d 1182, 1190 (D.C. Cir. 2004)

(suggesting government can justify disclosure under FOIA

with “special knowledge based upon its experience”); Taylor v.

Dep’t of the Army, 684 F.2d 99, 109 (D.C. Cir. 1982)

(government affidavits explaining why material was classified

were entitled to deference because of affiants’ “experience”).

Granted, simply because an individual misses work or is

otherwise unaccountably absent does not mean we can be

certain that he provided testimony to a grand jury. But

exemption 3 is not limited to circumstances that are certain to

reveal a witness’s identity. Instead, the exemption is properly

invoked if “the disclosed material would tend to reveal some

secret aspect of the grand jury’s investigation, including the

identities of witnesses.” Hodge, 703 F.3d at 580 (emphasis

added; quotation marks omitted). A tendency need only make

a result more likely. See Tendency, OXFORD ENGLISH

DICTIONARY (2d ed. 1989) (“leaning,” “inclination” or “bent

toward some . . . result”). The EOUSA has demonstrated how

raises an even more compelling security concern than with someone

who is not confined with the defendant. See JA 56–57.

11

disclosing the specific dates and times of day a grand jury met

to consider a particular “matter” makes it more likely that a

witness’s identity can be discovered. See supra pp. 9–10; see

also Lopez, 393 F.3d at 1350 (“[R]evealing the dates of

preliminary interviews conducted for the purposes of

‘screening’ potential [grand jury] witnesses may in fact tend to

reveal some secret aspect of the grand jury.” (emphasis added;

some quotation marks omitted)).

The EOUSA’s position also draws from the plausibility of

its explanation for invoking exemption 3. It reasonably

believes that a criminal suspect or defendant not only wants to

discover a grand jury witness’s identity but that he may also

want to retaliate against that witness. See JA 57 (if

“defendants . . . discover the identity of witnesses,” “that

person’s safety was in jeopardy”). Federal prosecutors are not

the only ones who believe that grand jury witnesses confront a

risk of retaliation; the Congress falls squarely in that camp as

well. That is why federal law prohibits tampering with or

retaliating against witnesses. See 18 U.S.C. § 1512 (witness

tampering unlawful); id. § 1513 (retaliation against witnesses

unlawful). These laws are not a solution in search of a

problem; there are countless cases dealing with successful

criminal prosecutions for both witness tampering and witness

retaliation. See, e.g., United States v. Wardell, 591 F.3d 1279,

1283 (10th Cir. 2009) (affirming conviction of “conspiring to

retaliate against a witness” and “retaliating against a witness”);

United States v. Wilson, 160 F.3d 732, 736 (D.C. Cir. 1998)

(affirming convictions of “conspiracy to kill a witness, killing a

witness with intent to prevent him from testifying, [and]

retaliating against a witness” (citations omitted)); United

States v. Cunningham, 54 F.3d 295, 297 (7th Cir. 1995)

(affirming convictions of “retaliating against a federal

witness”). And grand jury witnesses in particular—despite

the government’s best efforts to keep their identities

12

secret—have not been immune from similar threats. See, e.g.,

United States v. Gallimore, 491 F.3d 871, 873 (8th Cir. 2007)

(affirming defendant’s sentence after he “pled guilty to

retaliating against a grand jury witness”); United States v.

Maggitt, 784 F.2d 590, 594 (5th Cir. 1986) (affirming

conviction of tampering with and retaliating against witness

because jury could have found defendant’s “threat was

intended in retaliation against [the witness] for his earlier

testimony before the grand jury”).

The reported cases highlight that the risk of witness

retaliation is real or, at least, “plausible.” Larson, 565 F.3d at

862. The risk of retaliation against grand jury witnesses is one

reason for maintaining grand jury secrecy. See United States

v. Proctor & Gamble Co., 356 U.S. 677, 681–82 (1958)

(“long-established policy” of grand jury secrecy rests in part on

“encourag[ing] all witnesses to step forward and testify freely

without fear of retaliation”). The government plainly has a

strong interest in witness safety.

While the consequence of disclosing information that

tends to reveal the identity of grand jury witnesses is, by itself,

substantial, that risk alone is not the only reason for protecting

the times and dates a grand jury considered evidence or

deliberated in a particular case. Disclosing the days and times

a grand jury met to consider evidence and hear testimony

would also reveal the content of grand jury deliberations by

disclosing how long a particular “matter occurr[ed] before the

grand jury,” FED. R. CRIM. P. 6(e), how much or how little

evidence was weighed and which witnesses most occupied the

grand jury’s time. That information could shed light on the

nature of the grand jury’s investigative and deliberative

processes. Because disclosing the day-and-time information

Murphy sought would tend to reveal the complexity and

“scope, focus and direction of the grand jury investigations,”

13

that information is protected from disclosure by Rule 6(e) even

if no disclosure of witness identity or risk of retaliation exists.

See Fund for Constitutional Gov’t, 656 F.2d at 869.

Amicus offers several rejoinders. We find none of them

persuasive. First, amicus argues that the supplemental

Brandon Declaration is insufficient because it does not point to

an actual case in which a witness’s identity was revealed after

disclosing the dates and times of day a grand jury met. But the

basis for invoking exemption 3 need only be “logical or

plausible.” Larson, 565 F.3d at 862. A risk of harm is

plausible even if the anticipated harm has not yet materialized.

See ACLU v. DOD, 628 F.3d 612, 619 (D.C. Cir. 2011) (“[A]

reviewing court must take into account that any affidavit or

other agency statement of threatened harm . . . will always be

speculative to some extent, in the sense that it describes a

potential future harm.” (quotation marks and ellipsis omitted)).

Likewise, an explanation is no less plausible because it posits

persuasive hypotheticals rather than real-world examples. Cf.

Mudge Rose Guthrie Alexander & Ferdon v. ITC, 846 F.2d

1527, 1532 (D.C. Cir. 1988) (suggesting agency could have

cured insufficient FOIA affidavit by providing “hypothetical

examples”).

Second, amicus contends there is little risk that Murphy

could use the requested information to identify grand jury

witnesses because the grand juries convened five to seven

years ago. But there is no time limit on the secrecy of grand

jury proceedings. See Fund for Constitutional Gov’t, 656

F.2d at 869 n.32 (“the chronological remoteness of grand jury

proceedings bears no relevance to [a] FOIA inquiry” and “[t]he

general rule [of grand jury secrecy] admits to no exception for

old grand jury proceedings”). Moreover, we have previously

decided FOIA cases seeking years-old grand jury information

and not once intimated that the passage of time made Rule 6

14

inapplicable. See Hodge, 703 F.3d at 579 (2002 FOIA request

seeking grand jury information related to 1985 conviction);

Lopez, 393 F.3d at 1347 (1997 FOIA requests seeking grand

jury information leading to 1990 indictment).

Amicus further claims that the information which we have

previously held to be covered by exemption 3 is different from

the date-and-time information that Murphy wants. Amicus

states that, notwithstanding that documents that include the

name of a grand jury witness necessarily disclose his identity,

the same cannot be said for the dates and times of day a grand

jury meets. This argument misunderstands what is needed to

successfully invoke exemption 3. The test is whether “the

disclosed material would tend to reveal some secret aspect of

the grand jury’s investigation, including the identities of

witnesses.” Hodge, 703 F.3d at 580 (emphasis added).

Finally, amicus identifies three cases in which the Justice

Department allegedly disclosed the dates and times of day a

grand jury convened to hear testimony. We find all three

inapposite. In one, the Justice Department was ordered to

disclose “the date the grand jury convened, the date the

indictment was returned or issued, and the date the grand jury

was discharged.” Hill v. DOJ, No. 11-cv-00273, ECF No. 29,

at 8 (D.D.C. Dec. 19, 2011) (magistrate report and

recommendation). This information revealed nothing more

than when “the grand jury’s work began and ended.” Id.

Murphy has this information for the two criminal cases

identified in his FOIA requests.

In the second case, the Justice Department declined to

disclose “the dates the grand jury convened.” Peay v. DOJ,

No. 04-cv-1859, 2007 WL 788871, at *3 (D.D.C. Mar. 14,

2007). The district court denied the government’s summary

judgment motion because its declaration did not explain “how

15

the disclosure of the dates the grand jury convened would tend

to reveal a ‘secret aspect’ of the grand jury investigation.” Id.

In contrast, we have here the second Brandon Declaration.

Amicus also points to North v. DOJ, 774 F. Supp. 2d 217

(D.D.C. 2011), a district court case in which the Justice

Department released “cover sheets and final pages of

transcripts of grand jury testimony . . . that indicated the date

that the testimony was given.” Id. at 220. The Justice

Department had initially withheld the information; it was

released only after the district court found its FOIA

declarations wanting. Compare North v. DOJ, No.

08-cv-01439, ECF No. 17-1, at 6, ¶ 19 (D.D.C. Dec. 12, 2008)

(categorically denying “entire [FOIA] request” because “all of

the materials requested were specifically identified as grand

jury materials”), with id. ECF No. 71-1, at 5, ¶ 14 (D.D.C. Apr.

15, 2010) (releasing documents that “allow plaintiff to see

when the proceedings took place since the redactions do not

include the dates”). The Justice Department’s initial response

in North is consistent with the EOUSA’s position here,

namely, that the dates and times of day the grand jury meets to

consider a specific case are protected by exemption 3. In any

event, North does not bind this court. 5

5

Amicus also contends that the district court’s segregability analysis

was insufficient. We disagree. An agency can withhold records

that are exempt from disclosure under FOIA but it must produce

“[a]ny reasonably segregable” portion thereof that does not fit one of

the statutory exemptions. 5 U.S.C. § 552(b). Here, however, there

is no segregability problem. Murphy requested specific

“information”—i.e., the dates and times of day the grand jury met to

consider his case and Byrd’s case. JA 25, 31. Once the EOUSA

declined to disclose the requested information, there was nothing left

to segregate. Cf. Judicial Watch, Inc. v. DOJ, 432 F.3d 366, 370

16

Finally, we address one remaining minor issue. In his

informal brief to this Court, Murphy requested an unredacted

copy of the indictment in Byrd’s case. Murphy admitted in

district court that the only redacted information in the Byrd

indictment was the grand jury foreperson’s name and

signature. This information is plainly protected under

exemption 3. See Hodge, 703 F.3d at 580 (exemption 3

protects information that would “tend to reveal some secret

aspect of the grand jury’s investigation, including the identities

of . . . jurors” (quotation marks omitted)). Although the

EOUSA has not invoked exemption 3 to protect the identity of

the grand jury foreperson, we can uphold ex mero motu

non-disclosure of information when ordering disclosure would

“endanger the safety and privacy of third parties.” August v.

FBI, 328 F.3d 697, 701 (D.C. Cir. 2003); see also id. (“The law

does not require that third parties pay for the Government’s

mistakes.”).

For the foregoing reasons, the district court’s judgment is

affirmed.

So ordered.

(D.C. Cir. 2005) (segregability does not apply if “there simply are no

‘reasonably segregable’ portions to release after deletion of the

portions which are exempt.” (ellipsis and some quotation marks

omitted)).

In addition, Murphy’s inadequate-search challenge fails

because the adequacy of the search becomes a moot point if the

requested information is in fact found but not disclosed. See

Blanton v. DOJ, 64 F. App’x 787, 788–89 (D.C. Cir. 2003) (per

curiam) (plaintiff’s challenge to adequacy of search was “moot”

when agency “found th[e] [requested] documents”).