Pubian v. EOUSA, No. 18-172, 2018 WL 5923917 (D.D.C. Nov. 13, 2018) (Boasberg, J.)

Pubian v. EOUSA, No. 18-172, 2018 WL 5923917 (D.D.C. Nov. 13, 2018) (Boasberg, J.)

Re:  Request for records concerning grand jury that indicted plaintiff

Disposition:  Granting defendant's motion for summary judgment

• Litigation considerations, Adequacy of Search:  The court holds that "[defendant] . . . emailed the AUSAs who had been assigned to [plaintiff's] criminal case."  "Both searched their records but determined that they did not have any responsive information; they indicated that any relevant document, if it existed, would be with the office's Grand Jury Clerk, who [defendant] had already determined lacked any responsive information."  In response to plaintiff's objections, the court holds that "[n]othing in the case law suggests that every government employee who participates or responds in some way to overtures relating to the search – in this case, for example, the AUSAs and the Grand Jury Clerk – must be named for the Court to vet the adequacy of Defendant's efforts."  Additionally, the court finds that "[t]he Government is not required to produce documents that no longer exist or to retain indefinitely the records it has."
   
• Exemption 7, Threshold:  The court holds that "[i]t strains credulity to suggest that the information compiled about grand-jury dates over a decade after it was impaneled and discharged – and in response to a FOIA request – was assembled for law-enforcement purposes."  "Indeed, the Memo was created only for FOIA purposes."
   
• Exemption 6:  The court holds that "The Government has some interest in withholding the names ["of the individuals working at the district court and U.S. Attorney's Office"] to protect its personnel from 'harassment or harm.'"  "Plaintiff, by contrast, has not identified any interest whatsoever in obtaining the names of the people who merely exchanged the Memo that EOUSA produced in response to his request."  "That ministerial task is unrelated to the information he seeks, nor does it shed any light on the material he has an interest in obtaining."
   
• Waiver:  In response to plaintiff's waiver argument, the court holds "[t]hat some material related to this grand jury is public does not imply that the names of the staff members who exchanged the Memo are also public."