                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
JOSEF F. BOEHM,                     )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )              Civil Action No. 09-2173 (ABJ)
                                    )
FEDERAL BUREAU OF                   )
INVESTIGATION, et al.,              )
                                    )
                  Defendants.       )
____________________________________)


                                MEMORANDUM OPINION

       Defendants the Federal Bureau of Investigation (“FBI”), the Executive Office for United

States Attorneys (“EOUSA”), and the Criminal Division of the United States Department of

Justice have moved for summary judgment on the few remaining issues in this Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552 (2006), case. Defs.’ Supplemental Mem. in Supp. of

Defs.’ Mot. for Summ. J. (“Defs.’ Supp. Mem.”) [Dkt. # 49]. On June 10, 2013, the Court

granted defendants’ first motion for summary judgment in part, denied it in part, and remanded

to defendants “for closer review and supplementation of the basis for withholding” of a few

categories of records: (1) the representative document found at page number BOEHM-2738

withheld by the FBI and any documents it was designated to represent; (2) “[d]ocuments that the

EOUSA has withheld under the explanation that they are ‘related to the grand jury’”; and (3)




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                                                                          1
“[i]nformation that the EOUSA has withheld under exemption 7(D).”             Boehm v. FBI, -- F.

Supp. 2d -- , No. 9-2173, 2013 WL 2477091, at *25 (D.D.C. June 10, 2013). Defendants

conducted further review and submitted two additional declarations in support of their contention

that the contested documents have been properly withheld under the cited FOIA exemptions

Defs.’ Supp. Mem. at 2–4; see also Hardy 2d Decl. [Dkt. # 49-1]; Luczynski Supplemental Decl.

¶ 3 (“Luczynski Supp. Decl.”) [Dkt. # 49-2]. Plaintiff maintains that defendants have still not

met their burden to establish the applicability of the exemptions or to justify the present

redactions. Pl.’s Resp. to Defs.’ Supplemental Mem. in Supp. of Defs.’ Mot. for Summ. J.

(“Pl.’s Resp.”) at 2–5 [Dkt. # 51].

                                      STANDARD OF REVIEW

       Summary judgment is appropriate “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.” Fed. R. Civ. P.

56(a). The party seeking summary judgment bears the “initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat

summary judgment, the non-moving party must “designate specific facts showing there is a

genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual

dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.


1       In response to plaintiff’s fourth objection to the defendants’ withholdings, the Court
ordered that “the FBI release to plaintiff . . . all portions [of BOEHM 3853 to 3858] that are
being withheld under Exemption 7(F), but not under Exemptions 6 or 7(C).” Boehm, 2013 WL
2477091, at *25. In the Hardy declaration, the FBI notified the Court that it has complied with
this order. Hardy 2d Decl. ¶ 10. Plaintiff does not dispute that representation, so that aspect of
the case has been resolved.
                                                2
242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the

non-moving party; a fact is only “material” if it is capable of affecting the outcome of the

litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In

assessing a party’s motion, the court must “view the facts and draw reasonable inferences ‘in the

light most favorable to the party opposing the summary judgment motion.’” Scott v. Harris, 550

U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654,

655 (1962) (per curiam).

                                           ANALYSIS

   I.      Defendants properly withheld the grand jury materials under Exemption 3.

        FOIA Exemption 3 authorizes the government to withhold information that is

“specifically exempted from disclosure by statute” so long as (1) the statute “requires that the

matters be withheld from the public in such a manner as to leave no discretion on the issue” and

(2) the statute relied on was “enacted after the date of enactment of the OPEN FOIA Act of 2009

[enacted Oct. 28, 2009].” 5 U.S.C. § 552(b)(3)(A)(i), (b)(3)(B). Federal Rule of Criminal

Procedure 6(e) is one of the “statutes” to which Exemption 3 refers. Sussman v. U.S. Marshals

Serv., 494 F.3d 1106, 1113 (D.C. Cir. 2007) (“FRCP 6(e) . . . counts as a statute for purposes of

Exemption 3, as it has been positively enacted by Congress.”).

        Rule 6(e) explicitly prohibits – with exceptions not relevant in this case – the disclosure

of “matter[s] occurring before [a] grand jury.” Fed. R. Crim. P. 6(e)(2); see also Senate of P.R.

v. DOJ, 823 F.2d 574, 582 (D.C. Cir. 1987). Therefore, when combined with FOIA’s Exemption

3, Rule 6(e) prohibits the disclosure of certain grand jury matters even in the face of a valid

FOIA request. See 5 U.S.C. § 552(b)(3); Fed. R. Crim. P. 6(e)(2); Senate of P.R., 823 F.2d at

582. The combined protection of Rule 6(e) and Exemption 3 is not without limit, though.


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Senate of P.R., 823 F.2d at 582 (noting that the D.C. Circuit has “never embraced a reading of

Rule 6(e) so literal as to draw ‘a veil of secrecy . . . over all matters occurring in the world that

happen to be investigated by a grand jury.”) (alteration in original), quoting SEC v. Dress Indus.,

Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980) (en banc). As this Court explained in its June 10,

2013 Memorandum Opinion, “[t]he disclosure of information ‘coincidentally before the grand

jury [which can] be revealed in such a manner that its revelation would not elucidate the inner

workings of the grand jury’ is not prohibited.” Boehm, 2013 WL 2477091, at *14 (alterations in

original), quoting Senate of P.R., 823 F.2d at 582. Defendants bear the burden of establishing

that the disclosure of the information they have withheld would “elucidate the inner workings of

the grand jury.” Senate of P.R., 823 F.2d at 582; see also id. at 579 n.9.

       Defendants failed to meet that burden when they filed their first summary judgment

motion in this case. In support of the motion, the FBI justified its withholding of representative

document BOEHM-2738 and the documents it represented by describing those documents as

“‘FBI FD–302 form, information obtained pursuant to Federal Grand Jury subpoena.’” Boehm,

2013 WL 2477091, at *14, quoting Hardy 1st Decl. at 11 [Dkt. # 36-5]. Since FBI 302 forms do

not necessarily reveal what transpired before a grand jury, the Court declined to accept the FBI’s

claim that the material was covered by Exemption 3 without more detailed information.

Similarly, EOUSA acknowledged its withholding of documents and stated that it did not “even

process[] some documents that might have been responsive to plaintiff’s requests if they were

found to be ‘related to the grand jury.’” Id. at *15, quoting Luczynski Original Decl. ¶ 11 [Dkt. #

36-4]. The Court found this description to be too vague to support the broad assertion of

Exemption 3. Id. at *15. Consequently, the Court ordered both the FBI and EOUSA to provide




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supplemental information for why the withheld documents should be excluded as grand jury

material. Id. at *14–*15.

       Pursuant to that order, the FBI reviewed the documents and concluded once again that

Exemption 3 prevented their disclosure. Defs.’ Supp. Mem. at 4. In support of its conclusion,

the FBI filed a Second Declaration of David M. Hardy, who explained that the information

withheld “concerns the names and identifying information of individuals subpoenaed to testify

before the Federal Grand Jury, information that identifies particular records subpoenaed by the

Federal Grand Jury, and substantive information that would otherwise shed light on the focus,

scope and direction of the Federal Grand Jury scope, direction and activities.” 2 Hardy 2d Decl.

¶ 9. Mr. Hardy also averred that disclosure of representative document BOEHM-2738 and the

documents it represents “would violate the secrecy of the grand jury proceedings by revealing

the Federal Grand Jury’s inner workings.” Id.

       Similarly, EOUSA reviewed the grand jury documents and concluded that Exemption 3

prohibited their disclosure. Luczynski Supp. Decl. ¶¶ 2–3. EOUSA explained that “details

concerning a Federal Grand Jury subpoena, including the name and identifying information of an

individual subject to a Federal Grand Jury subpoena and information that identifies specific

records or evidence subpoenaed by the Federal Grand Jury were withheld pursuant to this

exemption,” and that disclosure of the withheld information would, in EOUSA’s view, “reveal a

subject of the investigation as well as a specific aspect of the Grand Jury’s investigation into

plaintiff’s case, thereby revealing the secret, inner workings of the Federal Grand Jury that

considered the case.” Id. ¶ 3.


2      The FBI also states that representative document BOEHM-2738 is “[a]n FBI FD-302
form dated October 26, 2004, reflecting information obtained pursuant to a Federal Grand Jury
subpoena.” Hardy 2d Decl. ¶ 6 n.1.


                                                5
        Plaintiff does not contest that the names and identifying information of individuals

subpoenaed to testify before the federal grand jury were properly withheld pursuant to

Exemption 3 and Rule 6(e), Pl.’s Resp. at 2, 5, and “such matters as ‘the identities of witnesses

or jurors’” are one of the touchstones of information protected by Rule 6(e). Senate of P.R., 823

F.2d at 582 (citation omitted). Therefore, the Court finds that both the FBI and EOUSA satisfied

their burden to establish that, at a minimum, information that would otherwise reveal the names

or identities of individuals subpoenaed to testify before the federal grand jury was properly

withheld.

        But plaintiff continues to challenge defendants’ decision to withhold the exhibits and

records subpoenaed by the grand jury as well as the substantive information the grand jury

considered. Pl.’s Resp. at 2–3, 4–5. He argues that “there is no blanket exception to all

information that was before a grand jury” and that “[d]efendants have not shown that the

substantive information they describe cannot be segregated from the identifying information.”

Id. at 5, citing Senate of P.R., 823 F.2d at 582; see also id. at 2.

        Plaintiff is correct that there is no per se rule exempting all information in the

government’s possession that was ever presented to a grand jury simply because the grand jury

received it. But the cases he relies upon do not go so far as to mandate the disclosure of grand

jury exhibits under FOIA either. First, “Rule 6 is ‘quite clear that disclosure of matters occurring

before the grand jury is the exception and not the rule,’” Acosta v. FBI, -- F. Supp. 2d -- , No.

12-1578, 2013 WL 5306699, at *4 (D.D.C. Sept. 23, 2013), quoting Fund for Constitutional

Gov’t v. Nat’l Archives & Records Serv., 656 F.2d 856, 868 (D.C. Cir. 1981), and in this circuit,

“[a]ll grand jury subpoenas (be they ad testificandum or duces tecum) . . . fall within FOIA’s

third exemption,” Lopez v. DOJ, 393 F.3d 1345, 1350 (D.C. Cir. 2005); see also Plunkett v.



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DOJ, 924 F. Supp. 2d 289, 299 (D.D.C. 2013); Blackwell v. FBI, 680 F. Supp. 2d 79, 92–93

(D.D.C. 2010), aff’d 646 F.3d 37 (D.C. Cir. 2011). Second, although “[t]he fact that a grand jury

has subpoenaed documents concerning a particular matter does not [automatically] insulate that

matter from investigation in another forum,” Dresser, 628 F.2d at 1383, information identifying

which documents were subpoenaed and the documents themselves may still be protected under

Rule 6(e) if revealing that information would tend to “elucidate the inner workings of the grand

jury,” Senate of P.R., 823 F.2d at 583, quoting Fund for Constitutional Gov’t, 656 F2d at 870

(internal quotation marks omitted).    These considerations are unlikely to be present where

“testimony or data is sought for its own sake for its intrinsic value in furtherance of a lawful

investigation,” but the need to shield the information may arise when the material is sought “to

learn what took place before the grand jury.” In re Grand Jury Impanelled Oct. 2, 1978, 510 F.

Supp. 112, 114 (D.D.C. 1981) (citation omitted); see also Senate of P.R., 823 F.2d at 583 n.30

(citing with approval the reasoning in In re Grand Jury Impanelled); Cunningham v. Holder, 842

F. Supp. 2d 338, 344 (D.D.C. 2012).

        Here, the FBI and EOUSA are withholding information that identifies the particular

records subpoenaed by the federal grand jury as well as the substantive information actually

obtained and considered by the grand jury pursuant to those subpoenas. This approach is proper

under Exemption 3 because disclosure of the documents would reveal the contents of a grand

jury subpoena, which is prohibited in this circuit, Lopez, 393 F.3d at 1350, and they would shed

light on how the grand jury went about its work. Moreover, plaintiff seeks these documents to

learn what occurred before the grand jury, not for use in furtherance of a lawful investigation.

See Pl.'s Response to Defs.' Mot. for Summ. J. (“Pl.’s Opp.”) at 19 [Dkt. # 42] (“Plaintiff is

trying to obtain information to show that the government had a pattern of failing to disclose



                                               7
material information, specifically information relating to Bill Allen or anyone connected with

him.”); id. at 2 (“Plaintiff Josef Boehm filed his initial request for information in 2009, seeking

exculpatory and mitigating evidence that had been improperly withheld by the government

during Mr. Boehm’s concluded criminal prosecution.”). Therefore, the Court concludes that the

FBI met its burden to establish that representative document BOEHM-2738 and the category of

records it represents are exempt from disclosure under Exemption 3 and Rule 6(e) and that

EOUSA also met its burden to establish that its grand jury documents are exempt from

disclosure under Exemption 3 and Rule 6(e). See Sennett v. DOJ, -- F. Supp. 2d -- , No. 12-495,

2013 WL 4517177, at *9 (D.D.C. Aug. 27, 2013) (upholding the FBI’s application of Exemption

3 to withheld grand jury material based on the same justification provided in this case); McGehee

v. DOJ, 800 F. Supp. 2d 220, 231 (D.D.C. 2011) (same); Blackwell, 680 F. Supp. 2d at 93

(same). 3

    II.      EOUSA properly withheld the names and identifying information of government
             sources.
          EOUSA continues to maintain that it properly withheld records pursuant to FOIA

Exemption 7(D) that “contain[ed] information concerning the identities of individuals and

materials that the individuals provided in connection with the investigation of plaintiff for

violation of the federal criminal laws.” Luczynski Orig. Decl. ¶ 27; see also Luczynski Supp.

Decl. ¶¶ 4–8. In support of its claim that the withheld information is related to confidential

sources within the meaning of Exemption 7(D), EOUSA refers to plaintiff’s alleged drug

transactions and quotes portions of at least one source’s interview where the source indicates fear

of reprisal. Luczynski Supp. ¶¶ 7–8. Plaintiff argues that EOUSA has not met its burden to

3      Based on the Court’s conclusion that merely revealing the type of records subpoenaed
and the substantive information considered by the grand jury would violate the secrecy
requirements of Rule 6(e), the Court rejects plaintiff’s segregability argument because there is no
way to release potentially segregable information without also disclosing protected information.
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establish that all of the information being withheld was specifically provided by confidential

sources because EOUSA makes no attempt to differentiate confidential sources from non-

confidential sources. Pl.’s Resp. at 4. He also submits that there is no legitimate fear of reprisal

because plaintiff is incarcerated and is no longer involved in a conspiracy. Id.

       The Court notes that in its June 10 Order, it found EOUSA’s invocation of this exemption

to be conclusory, and it directed the EOUSA to proffer facts from which the Court could

conclude that the information withheld under Exemption 7(D) had been provided under an

express grant of confidentiality or that confidentiality was implied. Boehm, 2013 WL 2477091,

at *19–21. In its supplemental submission, EOUSA has done little more than reassert that the

information was gathered in the course of a criminal investigation and that some of the

information may relate to plaintiff’s alleged drug transactions, leaving the Court with misgivings

about whether EOUSA’s showing is now sufficient. But the Court need not resolve the question

of whether EOUSA satisfied its burden to establish confidentiality under Exemption 7(D)

because all the information withheld pursuant to that exemption has also been properly withheld

under Exemption 7(C).

       EOUSA’s Vaughn index demonstrates that all documents it withheld under Exemption

7(D) are also withheld under Exemption 7(C), Attach. 1 to Luczynski Org. Decl. (“Vaughn

index”) at 5; Attach. 2 to Luczynski Orig. Decl. (“Suppl. Vaughn index”) at 4–6, 8; see also

Representative Sample Exemptions Taken at 8 [Dkt. # 45], and that the only information

withheld under Exemption 7(D) was “[t]he names and other identifying information” of law




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enforcement officers and government sources, Vaughn index at 5. 4 These names and identifying

information, however, are precisely the type of information protected by Exemption 7(C), and

this Court previously held that the privacy interest in one’s name and identifying information

outweighed any public interest in disclosure in this case. 5 Boehm, 2013 WL 2477091, at *16–

*19. Thus, the Court finds it unnecessary to address whether EOUSA has provided sufficient

justification to warrant the withholdings under Exemption 7(D) because the Vaughn index, along

with the Court’s previous conclusion regarding the balance of Exemption 7(C)’s privacy and

public interests, support the conclusion that the names and identifying information of

government sources and law enforcement officers were properly withheld under Exemption

7(C). See Raulerson v. Ashcroft, 271 F. Supp. 2d 17, 28 n.8 (D.D.C. 2002) (finding that, “to the




4       With respect to the substance of the information provided by the witnesses and
informants, Mr. Luczynski confirmed that EOUSA released “as much segregable information as
possible without revealing the identities of the individuals interviewed.” Luczynski Supp. Decl.
¶ 8. Plaintiff offers no evidence that this declaration is false, and the Court finds it to be
sufficient to establish that all reasonably segregable information has been disclosed. See Military
Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981) (“[I]t is now well established that
summary judgment on the basis of such agency affidavits is warranted if the affidavits 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.”).
Moreover, EOUSA also withheld most of the potentially non-identifying information provided
by alleged government sources under Exemption 5, see Suppl. Vaughn index at 4–6, and the
Court previously upheld EOUSA’s application of Exemption 5 to the documents in this case,
Boehm, 2013 WL 2477091, at *15–16.

5       Although the Court’s previous opinion did not explicitly address the privacy interests
with regard to government sources and instead discussed only the privacy interest of law
enforcement officials, it is well-settled in this circuit that government sources have a privacy
interest in not having their identities disclosed and that the identities of government sources fall
within the scope of Exemption 7(C). See generally Computer Prof’ls for Social Responsibility v.
U.S. Secret Serv., 72 F.3d 897, 904 (D.C. Cir. 1996). Based on the same reasoning provided by
this Court in its June 10, 2013 Memorandum Opinion, the Court concludes that plaintiff failed to
identify a public interest that would overcome the privacy interests of government sources in this
case. See Boehm, 2013 WL 2477091, at *18–*19.
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