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”).