                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


JAMES MURPHY,                      )
                                   )
               Plaintiff,          )
                                   )
            v.                     )                  Civ. Action No. 13-0573 (ESH)
                                   )
EXECUTIVE OFFICE FOR               )
UNITED STATES ATTORNEYS,           )
                                   )
               Defendant.          )
__________________________________ )


                          MEMORANDUM OPINION AND ORDER

       In this pro se action brought under the Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552, plaintiff challenges the response of the Executive Office for United States Attorneys

(“EOUSA”) to two FOIA requests he made for information pertaining to two grand juries.

Defendant has moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to

state a claim upon which relief can be granted or for summary judgment under Rule 56. (Def.’s

Mot. to Dismiss or, in the Alternative, for Summ. J. [ECF No. 10].) Plaintiff has filed an

opposition to the motion [ECF No. 13]1 and defendant has filed a reply [ECF No. 19]. Upon

consideration of the parties’ submissions and the entire record, the Court will grant in part and

deny in part defendant’s motion for summary judgment and direct defendant to release certain

withheld information, if it exists in an agency record.




1
  On November 7, 2013, the Court, upon considering the filing captioned “Plaintiff’s Motion to
Conduct Discovery Pursuant to Fed. R. Civ. P. 56(d) or in Alternative Motion Opposition,”
denied plaintiff’s motion to conduct discovery and deemed the document filed as plaintiff’s
opposition to defendant’s summary judgment motion (hereafter “Pl.’s Opp’n”).
                                         BACKGROUND

        In plaintiff’s first FOIA request, dated February 13, 2013, plaintiff sought the dates a

grand jury convened to investigate two separate criminal cases, 1:08-CR-00433 and 1:08-CR-

314, prosecuted in the U.S. District Court for the Middle District of Pennsylvania, as well as “the

names 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.” (Decl. of Kathleen Brandon [ECF No. 10-1], Ex. A.) In a

second FOIA request, dated April 18, 2013, plaintiff requested “the dates the grand jury issued

the indictments [in the same two criminal cases] . . . the dates and times of sessions the grand

jury convened, whether it was summoned pursuant to Fed. Crim. P. 6(a) or 18 U.S.C. 1331 and

the certified letter requesting the special grand jury and the caption of the indictment.” (Id., Ex.

D.) In addition, plaintiff requested “an unredacted copy of the indictment” in 1:08-CR-314.

(Id.)

        Plaintiff commenced the above-captioned action on April 26, 2013 (Compl. [ECF No.

1]), challenging defendant’s failure to respond to the first FOIA request, and then filed an

amended complaint on June 12, 2013, to add a claim based on the lack of response to the second

FOIA request. (See Am. Compl. [ECF No. 8].) Thereafter, defendant processed both FOIA

requests, and, by letter dated July 5, 2013, stated that it was “making all records required to be

released, or considered appropriate for release as a matter of discretion, available to you.”

(Brandon Decl., Ex. G.) The letter then conveyed to plaintiff the dates each grand jury was

impaneled and the dates each expired, the name of the Chief Judge who supervised the respective

grand jury, and the dates each grand jury convened and returned an indictment. In addition,

defendant released the dockets of both criminal cases, which contained the requested “courts’



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entries.” (Id.) The letter informed plaintiff of his right to appeal the decision to the Department

of Justice’s Office of Information Policy (“OIP”).

       In a letter dated July 17, 2013, defendant supplemented its release by informing plaintiff

that the grand juries were summoned pursuant to Fed. R. Crim. P. 6(a) and releasing the

following additional documents: “the official version” of the indictment in 08-CR-314, which

had been “redacted by the court,” and “a copy of the indictment” in 08-CR-00433, “which

contain[ed] the caption [plaintiff] requested.” (Id., Ex. H.) Defendant then informed plaintiff

that it was withholding “the times the grand juries convened” pursuant to FOIA exemptions 3

and 7(c), see 5 U.S.C. § 552(b), and Fed. R. Crim. P. 6 “to protect the identity of witnesses and

the secrecy of the grand jury proceedings.” (Id.). The letter again informed plaintiff of his right

to appeal to OIP.

                                      LEGAL STANDARD

       Summary judgment should be granted to the movant if it has shown, when the facts are

viewed in the light most favorable to the nonmovant, that there are no genuine issues of material

fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see

generally Celotex Corp. v. Catrett, 477 U.S. 317 (1986). In a FOIA action, the Court may award

summary judgment to the agency solely on the basis of information provided in reasonably

detailed affidavits or declarations that describe “the documents and 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.” Military Audit Project v. Casey,

656 F.2d 724, 738 (D.C. Cir. 1981); accord Campbell v. Dep’t of Justice, 164 F.3d 20, 30 (D.C.




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Cir. 1998) (quoting King v. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)); Vaughn v.

Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).

       When questions arise about an agency’s search, the agency prevails on a motion for

summary judgment if it shows “beyond material doubt [] that it has conducted a search

reasonably calculated to uncover all relevant documents.” Weisberg v. U.S. Dep’t of Justice, 705

F.2d 1344, 1351 (D.C. Cir. 1983). For purposes of this showing, the agency “may rely upon

affidavits . . . , as long as they are relatively detailed and nonconclusory and . . . submitted in

good faith.” Id. (citations and quotation marks omitted). The required level of detail “set[s]

forth the search terms and the type of search performed, and aver[s] that all files likely to contain

responsive materials (if such records exist) were searched . . . .” Oglesby v. U.S. Dep’t of the

Army, 920 F.2d 57, 68 (D.C. Cir. 1990); accord Valencia-Lucena v. U.S. Coast Guard, 180 F.3d

321, 326 (D.C. Cir. 1999). Summary judgment may not be granted “if a review of the record

raises substantial doubt” about the adequacy of the search. Valencia-Lucena, 180 F.3d at 326

(citing Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 837 (D.C.

Cir. 1979)). If responsive records to a properly submitted request have been improperly

withheld, a court is authorized “to devise remedies and enjoin. McGehee v. CIA, 697 F.2d 1095,

1105 (D.C. Cir. 1983) (quoting Kissinger v. Reporters Comm. for Freedom of the Press, 445

U.S. 136, 150 (1980)).

                                           DISCUSSION

       A.      Released Documents

       Plaintiff first questions the accuracy or redactions of information in several of the

released documents. See Pl.’s Opp’n Brief 2-3, 5. Plaintiff’s argument is premised on a

misunderstanding of the FOIA. “Under [the] FOIA, an individual may only obtain access to



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records ‘written or transcribed to perpetuate knowledge or events.’ . . . [The] FOIA neither

requires an agency to answer questions disguised as a FOIA request, [n]or to create documents or

opinions in response to an individual’s request for information.” Hudgins v. IRS, 620 F. Supp.

19, 21 (D.D.C. 1985), aff’d, 808 F.2d 137 (D.C. Cir. 1987), cert. denied, 484 U.S. 803 (1987)

(citations omitted). Furthermore, the FOIA does not require an agency to assure the accuracy of

records prior to their release; such is the province of the Privacy Act under circumstances not

present here. See 5 U.S.C. § 552a(g)(1) (authorizing suit for an agency’s maintenance of

inaccurate first-party records under specified circumstances). Thus, even if plaintiff has shown

inaccuracies in the released documents, such inaccuracies are immaterial to the disclosure

question. Similarly, defendant’s release of a redacted copy of the indictment in 1:08-CR-314 in

response to plaintiff’s request for an unredacted copy does not constitute an improper

withholding because the redactions were made not by EOUSA but by a court, which is not

subject to the FOIA. See Banks v. Dep’t of Justice, 538 F. Supp. 2d 228, 231 (D.D.C. 2008)

(“The term “agency” as defined for purposes of FOIA and the Privacy Act expressly excludes

the courts of the United States.”). Finally, although plaintiff does not expressly question the

adequacy of defendant’s search, he complains that the released documents do not reflect what he

expected to find. However, the search yielded the requested records that, in turn, enabled

defendant to answer the questions plaintiff had posed. (See Brandon Decl. ¶¶ 6, 9-13.) The fact

that the released documents may not reflect what plaintiff surmises they should or “that a

particular document was not found does not demonstrate the inadequacy of a search,” Boyd v.

Criminal Div. of U.S. Dept. of Justice 475 F.3d 381, 390 -91 (D.C. Cir. 2007), or “point to

evidence sufficient to put the Agency’s good faith into doubt.” Ground Saucer Watch, Inc. v.

C.I.A., 692 F.2d 770, 771 (D.C. Cir. 1981).



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       B.      FOIA Exemption 3

       Plaintiff reasonably questions defendant’s invocation of FOIA exemption 3 to justify

withholding the requested times the grand juries convened. (Pl.’s Opp’n Brief at 4; see Brandon

Decl., Ex. H.) Exemption 3 protects from disclosure records that are “specifically exempted

from disclosure by statute,” provided that such statute either requires a withholding (A) “in such

a manner as to leave no discretion on the issue,” or (B) “establishes particular criteria for

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

Federal Rules of Criminal Procedure prohibit disclosure of “matters occurring before [a] grand

jury.” Fed. R. Crim. P. 6(e)(2); see In re Motions of Dow Jones & Co., Inc., 142 F.3d 496, 498-

501 (D.C. Cir. 1998). Rule 6(e) is a statute for purposes of exemption 3 because Congress

affirmatively enacted it. See Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv.,

656 F.2d 856, 867-68 (D.C. Cir. 1981). In this Circuit, the grand jury exception is limited to

material which, if disclosed, would “tend 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.”

Senate of P.R. v. U.S. Dep’t of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987).

       To justify withholding “the times that the grand juries convened,” EOUSA’s declarant

merely quotes the language of the release letter that information was being withheld “in order to

protect the identity of witnesses and the secrecy of the grand jury proceedings.” (Brandon Decl.

¶ 13.) This obscure statement fails to explain how releasing the requested information could

possibly reveal a secret aspect of the grand jury investigation, and arguably is contradicted by

defendant’s release of the dates the grand jury convened and returned an indictment.

Defendant’s declaration simply fails to demonstrate a Alogical connection between the [withheld



                                                   6
grand jury] information and the claimed exemption.@ Goldberg v. U.S. Dep’t of State, 818 F.2d

71, 78 (D.C. Cir. 1987). Hence, the Court will deny summary judgment to defendant on its

invocation of exemption 3 and, if the information about the grand jury start and end times is

contained in an “agency record,” direct its release. See Lopez v. Dep’t of Justice, 393 F.3d 1345,

1347, 1351 (D.C. Cir. 2005) (remanding case with instruction to the district court to order the

release of previously redacted dates on which “prosecutors interviewed prospective grand jury

witnesses” since those dates did not “inherently reveal secret matters occurring before a grand

jury and . . . the Government ha[d] failed to demonstrate how disclosing the date . . . would

reveal a protected aspect of the grand jury”).

       C.      Exemption 7(C)

       Plaintiff has not contested (see Def.’s Mem. in Support of Def.’s Mot.. at 11-12) and,

therefore, has conceded defendant’s argument that it properly invoked FOIA exemption 7(C) to

protect the identity of grand jury witnesses. See Hopkins v. Women’s Div., General Bd. of

Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003), aff’d, 98 Fed. Appx. 8 (D.C. Cir. 2004)

(“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive

motion and addresses only certain arguments raised by the defendant, a court may treat those

arguments that the plaintiff failed to address as conceded.”). In any event, it is established that

because of substantial privacy concerns, exemption 7(C) “categorically” exempts from

disclosure the identities of individuals mentioned in law enforcement files, such as here, absent a

showing, not attempted here, of an overriding public interest. Nation Magazine, Washington

Bureau v. United States Customs Service, 71 F.3d 885, 896 (D.C. Cir. 1995); see Blackwell v.

FBI, 646 F.3d 37, 41 (D.C. Cir. 2011) (“As a result of [e]xemption 7(C), FOIA ordinarily does

not require disclosure of law enforcement documents (or portions thereof) that contain private



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information.”) (citing cases); id. at 40 (finding law enforcement assertion “especially convincing

[where] [requester] explicitly sought records related to his own criminal prosecution”).

                                        CONCLUSION

       For the foregoing reasons, it is hereby

       ORDERED that Defendant’s Motion for Summary Judgment [ECF No. 10] is

GRANTED in part and DENIED in part; and it is further

       ORDERED that by no later than January 6, 2014, defendant shall release to plaintiff the

requested times each grand jury convened, if they are contained in an agency record, and notify

the Court forthwith upon the release of those records. If the information as to the times each

grand jury convened does not appear in an agency record, defendant may exercise its discretion

to decide whether to convey the information to plaintiff.


                                                     __________/s/___________
                                                     ELLEN SEGAL HUVELLE
                                                     United States District Judge

DATE: December 6, 2013




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