HUTCHINS v. EXECUTIVE OFFICE FOR THE UNITED STATES ATTORNEY
Filing
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MEMORANDUM OPINION accompanying the final order issued separately this day. Signed by Judge Amit P. Mehta on 5/19/20.(ah)
Case 1:18-cv-03033-APM Document 27 Filed 05/19/20 Page 1 of 7
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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TERRENCE B. HUTCHINS,
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Plaintiff,
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v.
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Civil No. 18-cv-3033 (APM)
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EXECUTIVE OFFICE OF THE UNITED
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STATES ATTORNEYS,
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Defendant.
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_________________________________________ )
MEMORANDUM OPINION
I.
INTRODUCTION
Plaintiff Terrence B. Hutchins, a federal prisoner appearing pro se, brought this action
under the Freedom of Information Act (“FOIA”) to compel production of certain grand jury
information from the Executive Office for United States Attorneys (“EOUSA”), a component of
the Department of Justice (“DOJ”). Defendant moves for summary judgment and proffers in
support the declarations of Theodore B. Smith, Def.’s Mot. for Summ. J., ECF No. 18, Decl. of
Theodore B. Smith, ECF No. 18-2; Reply in Further Supp. of Def.’s Mot. for Summ. J., ECF No.
23, Suppl. Decl. of Theodore B. Smith, ECF No. 23-1 [hereinafter Suppl. Smith Decl.]; and the
declaration of Margaret Saxon, ECF No. 18-3 [hereinafter Saxon Decl.]. The court will grant
Defendant’s motion for the reasons explained below.
II.
BACKGROUND
Plaintiff is serving a life sentence as a result of a 1996 drug conspiracy conviction in the
United States District Court for the Southern District of Florida. See United States v. Hutchins,
625 Fed. App’x 509, 509–10 (11th Cir. 2015). In 2018, Plaintiff requested from EOUSA “the
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actual [d]ates that a Grand Jury was impaneled in session” with respect to his criminal case.
Compl., ECF No. 1, Ex. A-1. On June 12, 2018, EOUSA categorically denied Plaintiff’s request,
citing FOIA Exemption 3 and Federal Rule of Criminal Procedure 6(e). Id., Ex. A-2; see Suppl.
Smith Decl. ¶ 9 (“Based on Exemption (b)(3) and Fed. R. Crim. P. 6(e), and applying the law of
the D.C. Circuit under [Murphy v. Exec. Office for U.S. Attorney, 789 F.3d 204 (D.C. Cir. 2015)],
I denied the plaintiff’s request . . . without requesting the United States Attorney’s Office for the
Southern District of Florida to search for responsive records.”).
In his appeal to DOJ’s Office of Information Policy (“OIP”), Plaintiff contended that he
“requested only the dates on which the two grand jury’s [sic] convened, including the starting and
ending dates for the grand jury’s term and the grand jury number.” Compl., Ex. A-3 at 2. Plaintiff
cited Fowlkes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 67 F. Supp. 3d 290 (D.D.C.
2014), asserting that EOUSA had “released the exact information” in Fowlkes. Id. On August 15,
2018, OIP affirmed EOUSA’s denial of Plaintiff’s “request for access to the dates that the grand
jury was empaneled in [his] criminal case in the United States Attorney’s Office for the Southern
District of Florida.” Id., Ex. A-4.
Plaintiff initiated this civil action on December 18, 2018. See Compl. Thereafter,
Defendant searched for responsive records but located none. See generally Saxon Decl.
III.
LEGAL STANDARD
“FOIA cases are typically and appropriately decided on motions for summary judgment.”
Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009). FOIA requires a federal agency to release
all records responsive to a properly submitted request except those protected from disclosure by
nine enumerated exemptions. See 5 U.S.C. § 552(b). The court may “enjoin [a federal] agency
from withholding agency records and [ ] order the production of any agency records improperly
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withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). An inadequate search can constitute
an improper withholding. See Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir.
1999) (“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.” (internal quotation
marks and citation omitted)). The district court reviews the agency’s action de novo, and “the
burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B).
Summary judgment in a FOIA case may be based solely on information provided in an
agency’s supporting affidavits or declarations if they are “relatively detailed and nonconclusory.”
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and
citation omitted). The agency’s affidavits or declarations must “describe the documents and the
justifications for nondisclosure with reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and . . . not [be] controverted by either
contrary evidence in the record [or] by evidence of agency bad faith.” Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see Beltranena v. Clinton, 770 F. Supp. 2d 175, 18182 (D.D.C. 2011). An agency’s “justification for invoking a FOIA exemption is sufficient if it
appears logical or plausible.” Murphy, 789 F.3d at 209 (internal quotation marks and citation
omitted). 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 issue with
respect to whether the agency has improperly withheld extant agency records.” Span v. U.S. Dep’t
of Justice, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (quoting U.S. Dep’t of Justice v. Tax Analysts,
492 U.S. 136, 142 (1989)).
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IV.
DISCUSSION
The parties spend much of their time disputing the meaning of Plaintiff’s request for “the
actual [d]ates that a Grand Jury was impaneled in session” with respect to his criminal case.
See Compl., Ex. A-1. Defendant interpreted Plaintiff’s request as asking for “the dates the grand
jury was actually in session or meeting,” see Suppl. Smith Decl. ¶ 7, and declined to disclose such
records based on the D.C. Circuit’s decision in Murphy, which confirmed that Exemption 3
protects from disclosure the dates and times of day of grand jury sessions. See Smith Decl. ¶¶ 811; Murphy, 789 F.3d at 211 (“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,’ that information is protected from disclosure by Rule 6(e) even if no disclosure of
witness identity or risk of retaliation exists.” (quoting Fund for Constitutional Gov’t v. Nat’l
Archives and Records Serv., 656 F.3d 856, 869 (D.C. Cir. 1981)). Plaintiff, however, challenges
Defendant’s reading of his FOIA demand.
He asserts that Defendant “intentionally
mischaracterized” his request as asking for “the dates that the grand jury was actually in session
or meeting,” when his request was more modest and sought only “the date[s] ‘that the grand jury
was impaneled,’” which is information not protected by Exemption 3. Pl.’s Opp’n to Def.’s Mot.
for Summ. J., ECF No. 20 [hereinafter Opp’n], at 5. Though the parties’ semantic battle is an
interesting one, the court need not resolve it. Because EOUSA has shown that it performed an
adequate search and located no responsive records, the court grants summary judgment on this
alternative ground.
An agency seeking summary judgment bears the burden of showing that, even with the
facts viewed in the light most favorable to the requester, the agency has conducted a search
“reasonably calculated to uncover all relevant documents.” Weisberg v. U.S. Dep’t of Justice,
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705 F.2d 1344, 1351 (D.C. Cir. 1983). “FOIA demands only a reasonable search tailored to the
nature of a particular request,” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998),
which “is generally determined not by the fruits of the search, but by the appropriateness of the
methods used to carry out the search,” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315
(D.C. Cir. 2003).
In response to this lawsuit, EOUSA’s declarant, Smith, asked staff at the U.S. Attorney’s
Office in the Southern District of Florida—including grand jury coordinator Margaret Saxon in
the West Palm Beach office that prosecuted Plaintiff—about “any” records regarding Plaintiff, and
“specifically, a date or dates in 1995 when the grand jury that indicted him was empaneled or when
it actually met.” Suppl. Smith Decl. ¶ 14. In response to this inquiry, Saxon searched “all the
places . . . reasonably expect[ed]” to locate responsive records, “specifically [the office’s] assigned
grand jury storage room, the filing cabinets contained therein, and [assistant U.S. attorney]’s
offices.” Saxon Decl. ¶ 12; see id. ¶ 9 (“I searched the locked room in the West Palm Beach branch
[office] where grand jury records are kept and found no grand jury records relating to the plaintiff
and no records of the empanelment or in-session dates of the grand jury that indicted the plaintiff
in 1995.”). In addition, Saxon spoke to the assistant United States attorney who prosecuted
Plaintiff and was “advised . . . that no grand jury records relating to the plaintiff or records of
empanelment or in-session dates of the grand jury that indicted the plaintiff remain in [her or his]
possession or control.” Id. ¶ 10.
Saxon “know[s],” moreover, that “records disclosing the date of empanelment of the grand
jury ordinarily are not kept in criminal case files, and [ ] when criminal case files are prepared for
shipment to the Federal Records Center in Atlanta, Georgia, they are purged of all grand jury
records, including grand jury subpoenas and any other records that might disclose the date or dates
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on which the grand jury met in connection with a case.” Id. ¶ 11. She cites the office’s “official
policy regarding retention of grand jury records,” which requires that original grand jury
transcripts be “maintained in a secure area for . . . ten years,” and that original grand jury notes be
“retained for a period of five (5) years. After the respective periods of retention have passed,
original notes and original transcripts are to be destroyed.” Id. ¶ 7. Finally, Saxon confirms that
the retention policy applies to “grand jury logs, which are the lists the [United States Attorney’s
Office] maintains of the dates a grand jury met and the witnesses scheduled,” and those logs “are
routinely destroyed . . . no more than” ten years “after the dismissal of the grand jury in question.”
Id. ¶ 8. The grand juries that indicted Defendant were convened decades ago, so Saxon’s failure
to locate responsive records after a reasonably calculated search is neither surprising nor untenable.
Nonetheless, Plaintiff questions why Saxon did not search the Legal Information Network
Systems, or LIONS, database for responsive records “to determine (1) if Plaintiff is within the
[Southern District of Florida] regarding the subject matter of the request; (2) if the requestor is
Plaintiff; (3) if the case is active or closed; and (4) the [assistant U.S. attorney] to whom the matter
of the request is assigned.” Opp’n at 14. He surmises that the LIONS database “would have
assessed . . . the original indictment, and the Grand Jury Cover Sheet (Grand Jury Form DC 53)[,]
which indicates the date” the grand jury was impaneled, “because the original [date] of the grand
jury form DC 53 is readily maintained by Clerk of the Court[.]” Id. at 15 (parenthesis in original).
Plaintiff, however, offers no reason why a search of LIONS is reasonably likely to have turned up
the “DC 53” that Saxon’s otherwise diligent search did not. When tailoring a search to a particular
request an “agency has discretion to confine its inquiry to a central filing system if additional
searches are unlikely to produce any marginal return; in other words, the agency generally need
not ‘search every record system.’” Campbell, 164 F.3d at 28 (quoting Oglesby v. U.S. Dep't of
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Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). Saxon searched the locations where dated grand jury
records relating to Plaintiff would most likely be found. Absent reason to suspect that such records
would be found in the LIONS database—and this record contains no such reason—Saxon was not
required to search the database.
In short, EOUSA’s “reasonably detailed” declarations, Oglesby, 920 F.2d at 68,
demonstrate a calculated search for decades-old records containing the requested grand jury
information at the locations where they were most likely to be found. Such declarations are
afforded “a presumption of good faith, which cannot be rebutted by [Plaintiff’s] purely speculative
claims about the existence and discoverability of [agency] documents.” SafeCard Servs., Inc., 926
F.2d at 1200 (internal quotation marks omitted).
V.
CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is granted.
A separate final order accompanies this Memorandum Opinion.
Dated: May 19, 2020
Amit P. Mehta
United States District Judge
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