    18-99-cv
    Sorin v. United States Department of Justice


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                   SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                    At a stated term of the United States Court of Appeals for the Second Circuit, held
    at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
    on the 6th day of December, two thousand eighteen.

    Present:
                AMALYA L. KEARSE,
                DEBRA ANN LIVINGSTON,
                SUSAN L. CARNEY,
                      Circuit Judges.
    ___________________________________________

    WILLIAM F. SORIN,

                                 Plaintiff-Appellant,

                       v.                                                             18-99-cv

    UNITED STATES DEPARTMENT OF JUSTICE,

                      Defendant-Appellee.
    ___________________________________________


    For Plaintiff-Appellant:                            WILLIAM F. SORIN, pro se, New York, NY.

    For Defendant-Appellee:                             PETER ARONOFF, Assistant United States Attorney
                                                        (Christopher Connolly, Assistant United States
                                                        Attorney, on the brief), for Geoffrey S. Berman,
                                                        United States Attorney for the Southern District of
                                                        New York, New York, NY.
       Appeal from a judgment of the United States District Court for the Southern District of

New York (Gorenstein, M.J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant William Sorin (“Sorin”) seeks documents related to his 2006 criminal

prosecution and guilty plea in the United States District Court for the Eastern District of New

York. In August 2015, Sorin filed suit pursuant to the Freedom of Information Act, 5 U.S.C. §

552 (“FOIA”), in the United States District Court for the Southern District of New York, seeking

production of those documents by Defendant-Appellee United States Department of Justice

(“DOJ”).    On November 29, 2017, the district court (Gorenstein, M.J.) granted summary

judgment to DOJ, holding that all of the documents that DOJ had withheld from Sorin fell within

three of FOIA’s statutory exemptions from disclosure. Sorin appealed. We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

                                          *      *       *

       This Court reviews a district court’s grant of summary judgment de novo. E.g., Ctr. for

Constitutional Rights v. C.I.A., 765 F.3d 161, 166 (2d Cir. 2014).          Summary judgment is

appropriate only “‘if the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.’” Sousa v. Marquez, 702 F.3d 124, 127

(2d Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). FOIA requires public disclosure of federal

agencies’ records unless the requested documents fall within one of FOIA’s nine enumerated

exemptions (the “FOIA Exemptions”). 5 U.S.C. § 552(a), (b)(1)–(9); see also Wood v. F.B.I.,

432 F.3d 78, 82–83 (2d Cir. 2005). “In order to prevail on a motion for summary judgment in a

FOIA case, the defending agency has the burden of showing that its search was adequate and that

any withheld documents fall within an exemption to the FOIA.” Carney v. U.S. Dep’t of Justice,


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19 F.3d 807, 812 (2d Cir. 1994) (citing 5 U.S.C. § 552(a)(4)(B)). To fulfill that burden, the

agency may offer affidavits or declarations “giving reasonably detailed explanations why any

withheld documents fall within an exemption,” the allegations in support of which “are accorded

a presumption of good faith.” Id. (internal quotation marks omitted).

       Sorin does not dispute the adequacy of DOJ’s search, but only the applicability of the

claimed FOIA Exemptions to the documents DOJ withheld. We agree with the magistrate judge

that all documents withheld by DOJ fall within at least one of the FOIA Exemptions.

I.     FOIA Exemption 3

       FOIA Exemption 3 (“Exemption 3”) permits nondisclosure of matters that are “specifically

exempted from disclosure” by another statute, if that statute “(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). Federal Rule of Criminal Procedure 6(e) (“FRCRP 6(e)”), concerning the secrecy

of grand jury matters, qualifies as a withholding statute under Exemption 3. See John Doe Corp.

v. John Doe Agency, 850 F.2d 105, 109 (2d Cir. 1988) (FRCRP 6(e) “is incorporated into the FOIA

by” Exemption 3), reversed on other grounds, 493 U.S. 146 (1989). FRCRP 6(e) “covers not

only the evidence actually presented to that body but also anything that may tend to reveal what

transpired before it.” United States v. E. Air Lines, Inc., 923 F.2d 241, 244 (2d Cir. 1991).

       DOJ described the documents it withheld from Sorin under Exemption 3 as: (1)

communications from a law firm to federal prosecutors, accompanying the production of

documents requested by grand jury subpoena and discussing the contents of specific subpoenas;

and (2) communications from those federal prosecutors to that law firm referencing specific grand

jury subpoenas. Because these documents “tend to reveal what transpired before” the grand jury,




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id. at 244, the district court properly held that they fall within Exemption 3 and that DOJ was not

required to disclose them.

II.      FOIA Exemption 5

         FOIA Exemption 5 (“Exemption 5”) permits non-disclosure of “inter-agency or intra-

agency memorandums or letters that 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). “This exemption encompasses traditional

discovery privileges, such as the attorney-client and work-product privileges.” Wood, 432 F.3d

at 83.    The work-product privilege shields from discovery materials 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); see also In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir.

2007). A document is “prepared in anticipation of litigation” if it may “fairly be said to have

been prepared or obtained because of the prospect of litigation.” United States v. Adlman, 134

F.3d 1194, 1202 (2d Cir. 1998) (internal quotation marks omitted) (emphasis in original).

         DOJ described the documents it withheld from Sorin under Exemption 5 as: (1) emails sent

between various federal law enforcement officials concerning the details of a then-ongoing

criminal investigation and associated legal theories and litigation strategies; and (2) attorney-

written notes, memoranda, and drafts regarding that investigation and the associated planned

prosecutions. These documents fall within the work-product privilege as communications within

and among federal law enforcement agencies created in anticipation of a criminal prosecution and

for the purpose of furthering that prosecution. See 5 U.S.C. § 552(b)(5); Adlman, 134 F.3d at

1202. Accordingly, the district court properly held that these documents fall within Exemption

5 and that DOJ was not required to disclose them.

III.     FOIA Exemption 7(C)




                                                  4
       FOIA Exemption 7(C) (“Exemption 7(C)”) exempts from disclosure “records or

information compiled for law enforcement purposes” to the extent that their disclosure “could

reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C.

§ 552(b)(7)(C). “Exemption 7(C) requires a court to balance the public interest in disclosure

against the privacy interest Congress intended the Exemption to protect.” Associated Press v.

U.S. Dep’t of Def., 554 F.3d 274, 284 (2d Cir. 2009) (internal quotation marks and brackets

omitted). The privacy interests considered in this balancing are “broad” and include the

“individual’s control of information concerning his or her person.” Wood, 432 F.3d at 88; see

also Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 166 (2004) (noting “special reason”

to protect personal data in the context of Exemption 7(C) because law enforcement documents

“often contain information about persons interviewed as witnesses or initial suspects but whose

link to the official inquiry may be the result of mere happenstance”). These privacy interests are

balanced against “the extent to which disclosure would serve the core purpose of the FOIA, which

is contributing significantly to public understanding of the operations or activities of the

government.” Cook v. Nat’l Archives & Records Admin., 758 F.3d 168, 177 (2d Cir. 2014)

(internal quotation marks, alterations, and emphasis omitted). “[T]he identity of the requesting

party has no bearing on the merits of his or her FOIA request.” U.S. Dep’t of Justice v. Reporters

Comm. for Freedom of the Press, 489 U.S. 749, 771 (1989). Moreover, a requester asserting that

disclosure is warranted to uncover government wrongdoing “must produce evidence that would

warrant a belief by a reasonable person that the alleged Government impropriety might have

occurred.” Favish, 541 U.S. at 174.

       All of the documents that DOJ withheld under Exemption 7(C) are memoranda describing

interviews conducted by a private law firm during the course of an internal investigation of Sorin’s

company. These documents were acquired by federal prosecutors in the course of a criminal


                                                 5
investigation, maintained in a criminal case file, and related to the subject matter of a criminal

prosecution. They were therefore “compiled for law enforcement purposes,” John Doe, 850 F.2d

at 109, although not created by public officials.

       The documents include the identities of potential witnesses in a criminal investigation—

including their professional and educational histories and financial information—along with

similar information about employees not interviewed in the internal investigation. The privacy

interests involved are therefore substantial. See Favish, 541 U.S. at 166. Sorin asserts a public

interest in accessing these documents to “assur[e] the accuracy” of a manuscript he prepared

regarding his prosecution.       Sorin Br. 6.   But the particular use that Sorin intends for the

requested documents is not relevant. See Reporters Comm., 489 U.S at 771. Furthermore, Sorin

has failed to “produce evidence that would warrant a belief by a reasonable person that [any]

alleged Government impropriety might have occurred.” Favish, 541 U.S. at 174. Accordingly,

the district court properly held that these documents fall within Exemption 7(C) and that DOJ was

not required to disclose them.

IV.    Other Arguments

       Sorin additionally argues that all of these FOIA Exemptions are inapplicable after passage

of the FOIA Improvement Act of 2016, Pub. L. No. 114–185, 130 Stat. 538 (2016) (“Improvement

Act”). Sorin quotes language from a 2009 presidential memorandum announcing a policy that

the government not keep information confidential “merely because public officials might be

embarrassed by disclosure.” Sorin Br. 9 (emphasis omitted) (quoting Memorandum for the

Heads of Executive Departments and Agencies, 74 Fed. Reg. 4,683, 4,683 (Jan. 21, 2009)). But

that language does not establish a principle that no embarrassing documents can fall within the

ordinary FOIA Exemptions. As discussed above, DOJ had sound reasons for withholding these

documents other than preventing embarrassment.          Moreover, even by its own terms, that


                                                    6
memorandum “does not create any right or benefit, substantive or procedural, enforceable at law

or in equity by any party.” Memorandum, 74 Fed. Reg. at 4,683.

       Finally, to the extent that Sorin argues that DOJ should release redacted documents rather

than withholding the documents in full, his argument fails. With respect to the documents

withheld under Exemption 5, work-product privilege protects the entirety of the withheld

documents. With respect to the documents withheld under Exemption 7(C), DOJ asserted that

redaction could not adequately protect the identity of witnesses because their testimony concerned

their specific roles at the company under investigation. With respect to the documents withheld

under Exemption 3, DOJ asserted that redaction would have left no meaningful information to be

disclosed. Those assertions are entitled to a presumption of good faith, which Sorin has not

attempted to rebut. See Carney, 19 F.3d at 812. Under these circumstances, FOIA permits

withholding the documents in their entirety. See Cook, 758 F.3d at 178 (“A court may . . . decline

to order an agency to commit significant time and resources to the separation of disjointed words,

phrases, or even sentences which taken separately or together have minimal or no information

content.” (alterations omitted)).

                                        *       *      *

       We have considered all of Sorin’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                             FOR THE COURT:
                                             Catherine O=Hagan Wolfe, Clerk




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