Liounis v. DOJ, No. 17-1621, 2018 WL 5817352 (D.D.C. Nov. 7, 2018) (Kollar-Kotelly, J.)

Liounis v. DOJ, No. 17-1621, 2018 WL 5817352 (D.D.C. Nov. 7, 2018) (Kollar-Kotelly, J.)

Re:  Request for records concerning grand jury involved in plaintiff's criminal conviction

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court finds that "[defendant EOUSA] indicates "'"which files were searched," by whom those files were searched, and [uses]. . . a "systematic approach to document location."'"  "Plaintiff offers only 'purely speculative claims about the existence and discoverability of other documents,' and he presents no evidence of bad faith."  "Accordingly, the Court concludes that Defendant's search was adequate."
   
• Litigation Considerations, Vaughn Index/Declaration:  "[T]he Court concludes that Defendant's Vaughn index, as a whole, is sufficient."  The court finds that "Defendant's Vaughn index contains the nature of the document, the number of pages of the document, the exemptions that Defendant claims apply, and a brief description of why those exemptions apply."  "Additionally, Defendant's Vaughn index is supplemented by [its] declaration which further explains why the responsive documents are exempt."  "Where, for some responsive documents, Defendant fails to sufficiently show that one exemption applies, Defendant cures any error by providing a sufficiently detailed explanation for why that document was properly withheld under a different exemption to FOIA."
   
• Litigation Considerations, In Camera Inspection:  "Because Defendant's declaration and Vaughn index provide sufficiently detailed information for the Court to determine whether the documents were properly withheld, Plaintiff's request for in camera review is unnecessary."
   
• Exemption 3:  The court relates that "FOIA Exemption 3 in conjunction with Rule 6(e), which prohibits the disclosure of matters occurring before a grand jury, would seem to foreclose Plaintiff’s request for his grand jury materials."  "But, the prohibition is not as all-encompassing as it at first appears."  The court finds that "[a] transcript of the grand jury presentation is the archetypal document that would 'tend to reveal some secret aspect of the grand jury's investigation.'"  "Likewise, the exhibits presented to the grand jury are exempt from FOIA under Exemption 3 because they would reveal 'the strategy or direction of the investigation.'"  "The Court concludes that any other non-exempt information contained in [these] document[s] is non-segregable."  However, "the Court considers the third category of withheld documents: thirteen draft indictments, a draft grand jury information sheet, and undated notes on the indictment from an Assistant United States Attorney."  "Defendant asserts that these documents should be withheld under FOIA Exemption 3 as they 'pertain to [the] secrecy and scope of grand jury proceedings.'"  "That could be true."  "But neither the Vaughn index nor [defendant's] declaration provide the Court with sufficient details regarding the connection between those documents and a 'secret aspect' of the grand jury investigation."
   
• Exemption 5, Attorney Work-Product:  "The Court concludes that Exemption 5 covers the draft indictments, the draft information, and the handwritten notes on the information as each of these documents was created during or in preparation for the criminal prosecution of Plaintiff."  "The draft indictments contain 'analysis and evaluation of potential legal claims, theories and strategy' that the OAUSA-EDNY was considering in preparing for Plaintiff's grand jury proceeding."  "The draft information is properly withheld under Exemption 5 for similar reasons."  "Because these documents were properly withheld under Exemption 5, the Court does not need to conduct a segregability analysis."