UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GREGORY WAYNE BURWELL, )
Plaintiff, §
v. § Civil Action No. 15-1515 (RJL)
)
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Defendant. § SEP 2 8 2016
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MEMORANDUM OPINION
(September _?f_?, 2016) [Dkt. # ll]
Plaintiff, a federal prisoner proceeding pro se, challenges the response of the
Executive Office for United States Attorneys (“EOUSA”) to his request under the
Freedom of lnformation Act (“FOIA”), 5 U.S.C. § 552, for certain grand jury information
pertaining to his earlier criminal case in the Eastern District of Virginia. EOUSA has
released responsive records and has moved for summary judgment under Fed. R. Civ. P.
56. For the reasons explained below, the motion Will be GRANTED.
BACKGROUND
A jury in the U.S. District Court for the Eastern District of Virginia convicted
plaintiff of multiple counts of conspiracy to interfere and interference With commerce by
violence and use of a firearm during the commission of a crime of violence. See Um'ted
States v. Burwell, 162 F. App’x 203, 204 (4th Cir. 2006) (per curiam).
()n December 2, 2014, plaintiff submitted a FOIA request to EOUSA, specifically
seeking:
five pieces of information regarding the grand jury proceedings in my
case: l) the name of the District Court judge in the Eastern District of
Virginia who summoned the Second Superceding lndictment grand
jury in my criminal case; 2) the date the Second Superceding
lndictment grand jury convened; 3) the date the Second Superceding
lndictment was returned from the grand jury; 4) the date the grand
jury was discharged on the Second Superceding Indictment; 5) A
copy of the legal and public Second Superceding lndictment that was
returned from the grand jury in my name.
Decl. of Vinay J. Jolly, Ex. A [Dkt. # ll-3]. In November 2015, Paralegal Specialist
Ann S. Helms initiated a search for responsive records in the U.S. Attorney’s Office for
the Eastern District of Virginia. Helms searched the Legal Information Office Network
System (LIONS), which is the “case management database that allows each [U.S.
Attorney’s foice] to maintain, track, and report information on their workload,” and
located an archived file. Helms Decl. 1] 3 [Dkt. # ll-4]. Upon retrieving plaintiff’ s
archived file, Helms “physically review[ed] each document” for responsive information
She located a copy of the requested Second Superseding lndictment but “was unable to
locate the other requested grandjury information.” Ia’. ‘l[ 4.
Meanwhile, plaintiff filed this civil action on September 17, 2015. On January 7,
2016, EOUSA released the Second Superseding lndictment [Dkt. # 17-1], which consists
of six pages. EOUSA released five pages completely. lt redacted the names of the
prosecuting attorney and the grand jury foreperson from one page pursuant to F()IA
exemptions 6 and 7(C), codified in 5 U.S.C. § 552(b), and Privacy Act exemption (j)(Z),
codified in 5 U.S.C. § 552a. See Jolly Decl. M l7-l9 & Ex. F.
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LEGAL STANDARD
The Court will grant summary judgment “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). In a FOIA action to compel production of agency records,
the agency “is entitled to summary judgment if no material facts are in dispute and if it
demonstrates ‘that each document that falls within the class requested either has been
produced . . . or is wholly exempt from the [FOIA’s] inspection requirements.”’ Stua’ents
Against Genocz`de v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Golana’
v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (alteration in original)). As “employed under
FOIA,” an individual may access “records written or transcribed to perpetuate knowledge
or events.” Hua’gz`ns v. IRS, 620 F. Supp. 19, 21 (D.D.C. 1985), ajj"a’, 808 F.2d 137 (D.C.
Cir. 1987) (internal quotation marks and citations omitted). “Therefore, FOIA neither
requires an agency to answer questions disguised as a FOIA request, . . . or to create
documents or opinions in response to an individual’s request for information.” Id.
(citations omitted).
Summary judgment may be granted solely on information provided in an agency’s
supporting affidavits or declarations if they are relatively detailed, describe “the
documents and the justifications for nondisclosure with reasonably specific detail, . . .
and are not controverted by either contrary evidence in the record [or] by evidence of
agency bad faith.” Mz'lz`tary Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).
“To successfully challenge an agency’s showing that it complied With the FOIA, the
plaintiff must come forward with ‘specific facts’ demonstrating that there is a genuine
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issue with respect to whether the agency has improperly withheld . . . agency records.”
Span v. U.S. Dep’t ofJustice, 696 F. Supp. 2d 113, ll9 (D.D.C. 2010) (quoting U.S.
Dep't ofJustl`ce v. Tax Analysts, 492 U.S. 136, 142 (1989)).
ANALYSIS
Plaintiff asserts that summary judgment is inappropriate as to (l) EOUSA’s denial
of records under the Privacy Act, (2) EOUSA’s search for responsive records, and (3)
EOUSA’s Withholding of third-party names. He is mistaken.
l. The Privacy Act
Plaintiff does not dispute that the records at issue are maintained in a criminal case
file contained in a Privacy Act System of Records, which, pursuant to 5 U.S.C. §
552a(j)(2), has been exempted from the Privacy Act’s access provisions. See Jolly Decl.
jj ll. Rather, plaintiff argues that the exemption is inapplicable “because the DOJ never
had terriorial [sic] or subject-matter jurisdiction [to arrest or prosecute him or] to enter
convictions or hear plaintiffs case.” Pl.’s Opp’n at 2 [Dkt. # 14]. Plaintiff has not
substantiated that claim with evidence that his convictions have been overturned or
otherwise invalidated. Nor has he cited any authority that would preclude the agency
from maintaining a file no matter the outcome of his criminal case. Most importantly,
plaintiff raises a non-issue because the Privacy Act specifically exempts from its
nondisclosure provisions documents that are otherwise required to be disclosed under the
FOIA, see 5 U.S.C. § 552a(b)(2), and EOUSA processed plaintiffs request under the
FOIA. Def.’s Mem. In Supp. Of Mot. for Summ. J at 6 [Dkt. # 11-2]. See Greentree v.
U.S. Customs Serv., 674 F.2d 74, 79 (D.C. Cir. 1982) (concluding “that section (b)(2) of
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the Privacy Act represents a Congressional mandate that the Privacy Act not be used as a
barrier to FGIA access”). Accordingly, the Court will grant summary judgment to
defendant on the Privacy Act claim.
2. The Adequacv of the Search
Plaintiff argues that defendant’s declarations fail to “establish that EOUSA has
made a good faith effort to conduct a search for respons[ive] records . . . because EOUSA
has failed to turn up certain records referenced in the documents Plaintiff received.” Pl.’s
Opp’n at 3. I disagree
An inadequate search for records constitutes an improper withholding under the
FOIA. See Maydak v. U.S. Dep’t. ofJustice, 254 F. Supp. 2d 23, 44 (D.D.C. 2003).
“The adequacy of an agency’s search is measured by a standard of reasonableness and is
dependent upon the circumstances of the case.” Weisberg v. U.S. Dep't of Justice, 705
F.2d 1344, 1351 (D.C. Cir. 1983) (intemal quotation marks and citations omitted). An
agency “fulfills its obligations under FOIA if it can demonstrate beyond material doubt
that its search was reasonably calculated to uncover all relevant documents.” Ancz`ent
Coz`n Collectors Gul'/a' v. U.S. Dep’t ofState, 641 F.3d 504, 514 (D.C. Cir. 2011) (internal
quotation marks and citations omitted). Consequently, “the adequacy of a FOIA search is
generally determined not by the fruits of the search, but by the appropriateness of the
methods used to carry out the search.” Iturrala’e v. Comptroller of the Currency, 315
F.3d 311, 315 (D.C. Cir. 2003) (citing Steinberg v. U.S. Dep’t ofJustz'ce, 23 F.3d 548,
551 (D.C. Cir. 1994)). As long as the agency conducts a reasonable search, “the failure
of an agency to turn up one specific document in its search does not alone render a search
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inadequate.” Id. An agency may not ignore obvious “indications in documents found in
its initial search that there were additional responsive documents elsewhere.” Id. But the
reasonableness of the search is not undermined by a requester’s “mere speculation that as
yet uncovered documents may exist[.]” Id. at 316 (quoting SafeCara' Servs., Inc. v. SEC,
926 F.2d 1197, 1201 (D.C. Cir. 1991)).
EOUSA’s declarant, Ann Helms, is responsible for processing FOIA requests for
records maintained by the U.S. Attorney’s Office for the Eastern District of Virginia,
which is where plaintiff was prosecuted Helms Decl. 11 1. Helms avers that she
“personally completed a thorough search of all records maintained by [that] office for the
items identified in the FOIA request.” Id. jj 3. She began with the LIONS database,
which tracks the office’s cases and includes such information as file numbers, court case
numbers, charges, defendants’ names and dispositions, and the investigating agencies and
agents’ names. Helms states that LIONS “does not separately track the grand jury
information identified in [plaintiff`s] request, so his physical case file was the only
location responsive records were likely to be found.” Id. Thus, Helms “physically
review[ed] each document” retrieved from plaintiff’s archived file and located the
Second Superseding lndictment. Ia’. jj 4. Helms further avers that “the search was
conducted utilizing methods which should identify any responsive records,” that she
knows of “no other files or sources of documents within this office and no other location
in the office” where there might be responsive records, and that she knows of no other
methods that could have been employed to locate additional responsive records. Id. 11 6.
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Plaintiff counters that he “has clearly offered a number of documents and evidence
of circumstances to overcome” defendants’ declarations, Pl.’s Opp’n at 5, but he has not
pointed to the location of such evidence in the record. On the other hand, plaintiff
contends that his “main argument . . . is that the agency knows the records don’t [sic]
exist[.]” Id. at 6. Plaintiff cannot have it both ways. His inconsistent arguments simply
fail to create a materially factual dispute about the reasonableness of the search or to ca11
into question the sufficiently detailed declaration describing the search. Accordingly, the
Court will grant summary judgment to defendant on this aspect of the FOIA claim.
3. Exemption 7gC)
Plaintiff contends that EGUSA improperly redacted the names of the Special
Assistant United States Attomey (“SAUSA”) and the grand jury foreperson from the
released superseding indictment. See Pl.’s ()pp’n at 8. Although defendant withheld the
names under FOIA exemptions 6 and 7(C), the Court will address only the latter
exemption since the information is indisputably contained in law enforcement records,
See Jolly Decl. jj 12 (“The entire responsive case file pertains to the criminal
investigation of Mr. Burwell and was compiled for criminal law enforcement
purposes[.]”); Roth v. U.S. Dep’t of Juslice, 642 F.3d 1161, 1173 (D.C. Cir. 2011)
(finding “no need to consider Exemption 6 separately [where] all information that would
fall within the scope of Exemption 6 would also be immune from disclosure under
Exemption 7(C)”).
FOIA Exemption 7(C) protects from disclosure information in law enforcement
records that “could reasonably be expected to constitute an unwarranted invasion of
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personal privacy.” 5 U.S.C. § 552(b)(7)(C). EOUSA withheld the name of the SAUSA
who “was responsible for helping to conduct and/or maintain the investigative and
prosecutorial activities reported in [the] case.” Jolly Decl. jj 18. Helms explains that
SAUSAs “conduct official investigations into violations of various criminal statutes and
come into contact with all strata of society.” They “conduct searches and make arrests,
both of which result in reasonable, but nonetheless serious disruptions in the lives of
individuals.” Ia’. Thus, disclosing an SAUSA’s name could lead to, among other harms,
“unnecessary, unofficial questioning as to the conduct of an investigation” and “hostility”
from the targets of the investigation that could “last for years.” Ia’.
Similarly, EOUSA withheld the name of the foreperson mentioned in the
indictment for similar reasons because such “individuals are in positions to access
information concerning official law enforcement investigations.” Ia’. jj 19. Helms adds
that forepersons “could become targets of harassing inquiries for unauthorized access to
the details of a criminal investigation if their identities are released.” Id.
In the absence of an overriding public interest, the “nondisclosure of names or
other information identifying individuals appearing in law enforcement records” is
routinely upheld. Schrecker v. U.S. Dep ’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003);
see also SafeCara’ Servs., 926 F.2d at 1206 (holding “categorically that, unless access to
the names and addresses of private individuals appearing in files within the ambit of
Exemption 7(C) is necessary in order to confirm or refute compelling evidence that the
agency is engaged in illegal activity, such information is exempt from disclosure”).
EOUSA “could find no legitimate public interest to be served” in disclosing the names,
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Jolly Decl. jj 18, and neither can the Court. Plaintiff has not asserted, let alone shown by
probative evidence, that the withheld names are necessary to “shed any light on the
[unlawful] conduct of any Government agency or official.” Grz'ffz`n v. Exec. Oyj‘ice for
U.S. Attorneys, 774 F. Supp. 2d 322, 326~27 (D.D.C. 2011) (alteration in original)
(quoting U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S.
749, 772-73 (1989)).
ln addition, the fact that plaintiff has obtained “a copy of the unredacted
indictment,” either from the district court or from a private investigator, Pl.’s Opp’n at 8,
is inconsequential because it does not constitute an “official disclosure” that waives
EOUSA’s right to assert any applicable FOIA exemptions The right to assert an
exemption lies with the agency possessing the requested record, and EOUSA retained the
right to assert an applicable FOIA exemption whether or not the plaintiff obtained an
unredacted copy of the indictment elsewhere Mobley v. CIA, 806 F.3d 568, 583-84
(D.C. Cir. 2015) (“Disclosure by one federal agency does not waive another agency’s
right to assert a FOIA exemption.”); Frugone v. CIA, 169 F.3d 772, 774-75 (D.C. Cir.
1999) (“[W]e do not deem ‘official’ a disclosure made by someone other than the agency
from which the information is being sought.”). The Court therefore finds EOUSA’s
minimal withholding of third-party names from the released indictment proper.
CONCLUSION
EOUSA has demonstrated its full compliance with the FOIA, and no agency
records were improperly withheld under the Privacy Act. Therefore, EOUSA’s motion
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for summary judgment is GRANTED.
accompanies this Memorandum ()pinion.
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An Order consistent with this decision
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RICHARDT:EGN
United States District Judge
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