UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) OSVALDO RIVERA-RODRIGUEZ, ) ) Plaintiff, ) ) v. ) ) Case No. 19-cv-02510 (APM) UNITED STATES DEPARTMENT ) OF JUSTICE, EXECUTIVE OFFICE ) OF THE UNITED STATES ATTORNEY, ) ) Defendant. ) _________________________________________ )
MEMORANDUM OPINION
I.
This Freedom of Information Act (“FOIA”) case is before the court for a second time on
Defendant’s motion for summary judgment. Plaintiff Osvaldo Rivera Rodriguez, proceeding
pro se, requested the records of a grand jury that indicted him in the Southern District of New
York. Mem. Op. & Order, ECF No. 22 [hereinafter Mem. Op.], at 1. Defendant initially identified
82 pages of responsive records but withheld them all pursuant to FOIA Exemption 3 based on
Federal Rule of Criminal Procedure 6(e), as well as certain portions based on Exemptions 6 and
7(C). See id. at 1–2. Defendant moved for summary judgment, but the court denied the motion,
except as to the adequacy of the search, because Defendant did not provide sufficient information
to enable the court to evaluate its categorical withholding approach with respect to Exemption 3.
Id. at 3–4. The court did not reach the remaining Exemptions asserted. Id. at 4 n.1. The court permitted Defendant to “renew its motion with an updated declaration and Vaughn Index.” Id. at
4. 1
Defendant has now done so. Def.’s Mot. for Summ. J., ECF No. 36 [hereinafter Def.’s
Mot.], Def.’s Mem. of P. & A. in Supp. of Def.’s Mot., ECF No. 36-2 [hereinafter Def.’s Mem.],
at 4–8. For the reasons that follow, the motion is granted.
II.
Exemption 3 permits the government to withhold records that are “specifically exempted
from disclosure by statute.” 5 U.S.C. § 552(b)(3). Rule 6(e) is “a qualifying statute under
Exemption 3.” Labow v. U.S. Dep’t of Just., 831 F.3d 523, 529 (D.C. Cir. 2016). “Consequently,
the sole question before [the court] is whether the documents withheld from disclosure fall within
Rule 6(e).” Id.
Rule 6(e) does not “draw a veil of secrecy . . . over all matters occurring in the world that
happen to be investigated by a grand jury.” Senate of the Commonwealth of Puerto Rico ex rel.
Judiciary Comm. v. U.S. Dep’t of Just., 823 F.2d 574, 582 (D.C. Cir. 1987) (alteration in original)
(internal quotation marks omitted). Instead, the court must determine “whether disclosure 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.” Id. (internal quotation marks omitted). Such a
finding is the “touchstone” of nondisclosure in favor of grand jury secrecy. Id.
Defendant’s initial Vaughn Index grouped all withheld records into three broad categories
that prevented the court from making this touchstone finding: “Grand Jury Records,” “Grand Jury
1 After it released copies of indictments that the court had suggested were not covered by Rule 6(e), Defendant unexpectedly moved to dismiss the suit based on the release of those records. The court denied the motion to dismiss. Order, ECF No. 34.
2 Transcripts,” and “Grand Jury Preliminary Matters.” Mem. Op. at 3. The updated Index provides
greater specificity. It states that record pages 19–66 consist of “Grand Jury Minutes,” 67–72
consist of “Grand Jury Voting Records” and a “Record of Concurring Grand Jurors,” and 73–82
consist of “Grand Jury Instructions/Charges.” Def.’s Mot., Ex. 4, ECF No. 36-4 [hereinafter
Vaughn Index], at 2. 2 The agency’s supplemental declaration, submitted by Kara Cain, offers
details as to each of these categories. See generally Def.’s Mot., Second Suppl. Decl. of Kara
Cain, ECF No. 36-3 [hereinafter Second Cain Decl.]. As to “Grand Jury Minutes,” she explains
that those records are covered by a sealing order issued by the court in the underlying matter and,
if disclosed, would “reve[a]l the secret discussions of the grand jury.” Id. ¶ 11. Regarding “Grand
Jury Voting Records” and “Record of Concurring Grand Jurors,” those records concern the “voting
and deliberation decisions of a grand jury,” whose secrecy “ensure[s] jurors have the freedom to
freely express their opinions and cast their vote without fear of disclosure.” Id. ¶ 12. Finally, as
to “Grand Jury Instructions/Charges,” Cain states that such records “provide a great deal of insight
into the inner workings of the grand jury and how its decision was reached.” Id. ¶ 13.
Defendant properly withheld all three categories of records. The grand jury minutes are
exempt from disclosure under FOIA because those materials, as Senate of the Commonwealth of
Puerto Rico stated, “would tend to reveal some secret aspect of the grand jury’s investigation,
such . . . as the identities or addresses of witnesses or jurors, the substance of testimony, the
strategy or direction of the investigation, the deliberations or questions of jurors, and the like.”
823 F.2d at 582; Roble v. U.S. Dep’t of Just., No. 18-5189, 2019 WL 286458, at *1 (D.C. Cir. Jan.
3, 2019) (holding that grand jury transcripts and minutes were properly withheld under
2 Defendant released, in part, the first 18 pages consisting of an original and two superseding indictments, with each foreperson’s name redacted pursuant to FOIA Exemptions 6 and 7(C). Vaughn Index at 1. The court considers these redactions in section III, infra.
3 Exemption 3); Sanders v. Obama, 729 F. Supp. 2d 148, 156 (D.D.C. 2010) (“[A] grand jury
transcript itself epitomizes the sensitive details of the proceedings that Congress sought to keep
protected.”). Grand jury voting records are similarly exempt because they are “secret aspect[s] of
the grand jury’s investigation” rather than nonexempt “information coincidentally before the grand
jury.” Senate of the Commonwealth of Puerto Rico, 823 F.2d at 582 (internal quotation marks
omitted); Flete-Garcia v. U.S. Dep’t of Just., No. 19-cv-2382 (RDM), 2021 WL 1146362, at *7
(D.D.C. Mar. 25, 2021) (affirming withholding of “request for grand jury voting records” because
it would “require disclosure of core, protected information”). And, under a similar rationale, courts
in this District have consistently held that Exemption 3 permits the withholding of grand jury
instructions. See, e.g., id.; Selgjekaj v. Exec. Off. for U.S. Att’ys, No. 20-cv-2145 (CRC), 2021 WL
3472437, at *7 (D.D.C. Aug. 6, 2021); Cunningham v. Holder, 842 F. Supp. 2d 338, 345 (D.D.C.
2012).
At no point does Plaintiff specifically rebut any of Defendant’s arguments. Instead, he
makes repeated reference to the separate criminal action in which he was indicted and argues that
“he is entitled to . . . any and all documents for the purpose of preparing a defense.” Pl.’s Resp. to
Def.’s Mot., ECF No. 39, at 5.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) OSVALDO RIVERA-RODRIGUEZ, ) ) Plaintiff, ) ) v. ) ) Case No. 19-cv-02510 (APM) UNITED STATES DEPARTMENT ) OF JUSTICE, EXECUTIVE OFFICE ) OF THE UNITED STATES ATTORNEY, ) ) Defendant. ) _________________________________________ )
MEMORANDUM OPINION
I.
This Freedom of Information Act (“FOIA”) case is before the court for a second time on
Defendant’s motion for summary judgment. Plaintiff Osvaldo Rivera Rodriguez, proceeding
pro se, requested the records of a grand jury that indicted him in the Southern District of New
York. Mem. Op. & Order, ECF No. 22 [hereinafter Mem. Op.], at 1. Defendant initially identified
82 pages of responsive records but withheld them all pursuant to FOIA Exemption 3 based on
Federal Rule of Criminal Procedure 6(e), as well as certain portions based on Exemptions 6 and
7(C). See id. at 1–2. Defendant moved for summary judgment, but the court denied the motion,
except as to the adequacy of the search, because Defendant did not provide sufficient information
to enable the court to evaluate its categorical withholding approach with respect to Exemption 3.
Id. at 3–4. The court did not reach the remaining Exemptions asserted. Id. at 4 n.1. The court permitted Defendant to “renew its motion with an updated declaration and Vaughn Index.” Id. at
4. 1
Defendant has now done so. Def.’s Mot. for Summ. J., ECF No. 36 [hereinafter Def.’s
Mot.], Def.’s Mem. of P. & A. in Supp. of Def.’s Mot., ECF No. 36-2 [hereinafter Def.’s Mem.],
at 4–8. For the reasons that follow, the motion is granted.
II.
Exemption 3 permits the government to withhold records that are “specifically exempted
from disclosure by statute.” 5 U.S.C. § 552(b)(3). Rule 6(e) is “a qualifying statute under
Exemption 3.” Labow v. U.S. Dep’t of Just., 831 F.3d 523, 529 (D.C. Cir. 2016). “Consequently,
the sole question before [the court] is whether the documents withheld from disclosure fall within
Rule 6(e).” Id.
Rule 6(e) does not “draw a veil of secrecy . . . over all matters occurring in the world that
happen to be investigated by a grand jury.” Senate of the Commonwealth of Puerto Rico ex rel.
Judiciary Comm. v. U.S. Dep’t of Just., 823 F.2d 574, 582 (D.C. Cir. 1987) (alteration in original)
(internal quotation marks omitted). Instead, the court must determine “whether disclosure 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.” Id. (internal quotation marks omitted). Such a
finding is the “touchstone” of nondisclosure in favor of grand jury secrecy. Id.
Defendant’s initial Vaughn Index grouped all withheld records into three broad categories
that prevented the court from making this touchstone finding: “Grand Jury Records,” “Grand Jury
1 After it released copies of indictments that the court had suggested were not covered by Rule 6(e), Defendant unexpectedly moved to dismiss the suit based on the release of those records. The court denied the motion to dismiss. Order, ECF No. 34.
2 Transcripts,” and “Grand Jury Preliminary Matters.” Mem. Op. at 3. The updated Index provides
greater specificity. It states that record pages 19–66 consist of “Grand Jury Minutes,” 67–72
consist of “Grand Jury Voting Records” and a “Record of Concurring Grand Jurors,” and 73–82
consist of “Grand Jury Instructions/Charges.” Def.’s Mot., Ex. 4, ECF No. 36-4 [hereinafter
Vaughn Index], at 2. 2 The agency’s supplemental declaration, submitted by Kara Cain, offers
details as to each of these categories. See generally Def.’s Mot., Second Suppl. Decl. of Kara
Cain, ECF No. 36-3 [hereinafter Second Cain Decl.]. As to “Grand Jury Minutes,” she explains
that those records are covered by a sealing order issued by the court in the underlying matter and,
if disclosed, would “reve[a]l the secret discussions of the grand jury.” Id. ¶ 11. Regarding “Grand
Jury Voting Records” and “Record of Concurring Grand Jurors,” those records concern the “voting
and deliberation decisions of a grand jury,” whose secrecy “ensure[s] jurors have the freedom to
freely express their opinions and cast their vote without fear of disclosure.” Id. ¶ 12. Finally, as
to “Grand Jury Instructions/Charges,” Cain states that such records “provide a great deal of insight
into the inner workings of the grand jury and how its decision was reached.” Id. ¶ 13.
Defendant properly withheld all three categories of records. The grand jury minutes are
exempt from disclosure under FOIA because those materials, as Senate of the Commonwealth of
Puerto Rico stated, “would tend to reveal some secret aspect of the grand jury’s investigation,
such . . . as the identities or addresses of witnesses or jurors, the substance of testimony, the
strategy or direction of the investigation, the deliberations or questions of jurors, and the like.”
823 F.2d at 582; Roble v. U.S. Dep’t of Just., No. 18-5189, 2019 WL 286458, at *1 (D.C. Cir. Jan.
3, 2019) (holding that grand jury transcripts and minutes were properly withheld under
2 Defendant released, in part, the first 18 pages consisting of an original and two superseding indictments, with each foreperson’s name redacted pursuant to FOIA Exemptions 6 and 7(C). Vaughn Index at 1. The court considers these redactions in section III, infra.
3 Exemption 3); Sanders v. Obama, 729 F. Supp. 2d 148, 156 (D.D.C. 2010) (“[A] grand jury
transcript itself epitomizes the sensitive details of the proceedings that Congress sought to keep
protected.”). Grand jury voting records are similarly exempt because they are “secret aspect[s] of
the grand jury’s investigation” rather than nonexempt “information coincidentally before the grand
jury.” Senate of the Commonwealth of Puerto Rico, 823 F.2d at 582 (internal quotation marks
omitted); Flete-Garcia v. U.S. Dep’t of Just., No. 19-cv-2382 (RDM), 2021 WL 1146362, at *7
(D.D.C. Mar. 25, 2021) (affirming withholding of “request for grand jury voting records” because
it would “require disclosure of core, protected information”). And, under a similar rationale, courts
in this District have consistently held that Exemption 3 permits the withholding of grand jury
instructions. See, e.g., id.; Selgjekaj v. Exec. Off. for U.S. Att’ys, No. 20-cv-2145 (CRC), 2021 WL
3472437, at *7 (D.D.C. Aug. 6, 2021); Cunningham v. Holder, 842 F. Supp. 2d 338, 345 (D.D.C.
2012).
At no point does Plaintiff specifically rebut any of Defendant’s arguments. Instead, he
makes repeated reference to the separate criminal action in which he was indicted and argues that
“he is entitled to . . . any and all documents for the purpose of preparing a defense.” Pl.’s Resp. to
Def.’s Mot., ECF No. 39, at 5. But Defendant “fails to recognize that the government’s obligations
in a FOIA case are not the same as its obligations in the underlying criminal case.” Petrucelli v.
U.S. Dep’t of Just., 106 F. Supp. 3d 129, 134 (D.D.C. 2015). FOIA does not entitle him to grand
jury material because he is a criminal defendant. Defendant properly invoked Exemption 3.
III.
Defendant did release to Plaintiff certain grand jury indictments but withheld the names of
the forepersons pursuant to FOIA Exemptions 6 and 7(C). Plaintiff does not appear to contest
those withholdings. He stated in opposition to Defendant’s initial summary judgment motion that
4 he was “not requesting the ‘names’ of the jurors associated with the Grand Jury.” Pl.’s Resp. to
Def.’s Mot. for Summ. J., ECF No. 21, at 2 (emphasis omitted). Those withholdings therefore are
not at issue.
But even if they were, the nondisclosure of the forepersons’ names was proper. The law
in this Circuit is well settled that the names of grand jury forepersons are properly withheld under
Exemptions 3, 6, and 7(C). See, e.g., Murphy v. Exec. Off. for U.S. Att’ys, 789 F.3d 204, 212 (D.C.
Cir. 2015) (affirming withholding under Exemption 3); Howard v. United States, 435 F. Supp. 3d
198, 205 (D.D.C. 2020) (finding withholding appropriate under Exemptions 6 and 7(C)) (citing
cases).
IV.
Finally, the court upholds Defendant’s determination that it is unable to segregate
information withheld under Exemption 3. Exemption 3 is unique insofar as “its applicability
depends less on the detailed factual contents of specific documents; the sole issue for decision is
the existence of a relevant statute and the inclusion of withheld material within that statute’s
coverage.” Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978). In analyzing the segregability of
material withheld pursuant to Exemption 3, courts have noted that agencies must not compromise
“the secret nature of potentially exempt information.” Beltranena v. U.S. Dep’t of State, 821
F. Supp. 2d 167, 179 (D.D.C. 2011) (internal quotation marks omitted). Those concerns are
present here. Defendant has shown that the requested records are properly exempt under
Exemption 3 and further states that it is not possible to segregate the records “due to the nature
and content of the protected information.” Second Cain Decl. ¶ 27. The court agrees and affirms
the agency’s segregability determination.
5 V.
For the foregoing reasons, Defendant’s Motion for Summary Judgment, ECF No. 36, is
granted. A final, appealable order accompanies this Memorandum Opinion.
Dated: January 14, 2022 Amit P. Mehta United States District Court Judge