McAtee v. United States Department of Homeland Security, United States Secret Service

Filing 37

ORDER re 23 First MOTION for Summary Judgment filed by Deanna McAtee, 19 MOTION for Summary Judgment filed by United States Department of Homeland Security, United States Secret Service. The Clerk of Court is directed to enter judgment in favor of Defendant and close this case. Signed by Judge Donald W. Molloy on 8/10/2016. (DLE)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

DEANNA McATEE,

CV 15–84–M–DWM

Plaintiff,
vs.

ORDER

UNITED STATES DEPARTMENT
OF HOMELAND SECURITY,
UNITED STATES SECRET
SERVICE,
Defendant.

INTRODUCTION
Pursuant to the Court’s previous Order addressing the parties’ motions for
summary judgment, (Doc. 34), the Secret Service has filed a supplemental Vaughn
index as to the pages it redacted and withheld under Exemption 3, (Doc. 35), and
the parties have filed a joint stipulation as to the 29 pages referred to and withheld
by the Executive Office of United States Attorneys, (Doc. 36). For the reasons
stated below, the Secret Service’s motion for summary judgment is granted, and
McAtee’s motion for summary judgment is denied. Because the background of
this FOIA action was set out in the Court’s previous Order it is not repeated here.

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STANDARD
Summary judgment is proper where “the movant shows that there is no
genuine issue as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
ANALYSIS
To determine which party is entitled to summary judgment in a FOIA
action, courts employ a three-step inquiry. Am. Civil Liberties Union of N. Cal. v.
FBI, __ F. Supp. 3d __, 2015 WL 7251928, at *2 (N.D. Cal. Nov. 17, 2015). The
first step is to determine whether the agency met its burden of showing that it fully
discharged its FOIA obligations. Id. The second step is to determine whether the
agency met its burden of demonstrating that the undisclosed information falls
within one of the nine FOIA exemptions. Id. The final step is to determine
whether the agency met its burden of establishing that “all reasonably segregable
portions of a document have been segregated and disclosed.” Id. (quoting Pac.
Fisheries, Inc. v. United States, 539 F.3d 1143, 1148 (9th Cir. 2008)).
I.

FOIA Obligations
The Court was previously without sufficient information to address 29

pages that were referred to and withheld by the Executive Office. (See Doc. 34 at
8–10.) According to the parties’ Joint Stipulation Regarding Referred Documents,
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however, any issues related to the 29 pages will be “dealt with in an independent
suit, if any should be filed.” (Doc. 36.) Accordingly, the Secret Service has met
its burden of showing that it fully discharged its FOIA obligations as to the
responsive pages that are at issue in this action. (See Doc. 34.)
II.

FOIA Exemptions
Agencies must make information available to the public unless the

information falls within one of the nine enumerated exemptions set forth in the
statute. 5 U.S.C. § 552(b). Exemptions must be narrowly construed. Shannahan
v. IRS, 672 F.3d 1142, 1148 (9th Cir. 2012). “FOIA’s strong presumption in favor
of disclosure places the burden on the government to show that an exemption
properly applies to the records it seeks to withhold.” Hamdan v. U.S. Dep’t of
Justice, 797 F.3d 759, 772 (9th Cir. 2015). The agency may carry that burden by
submitting affidavits and Vaughn indices, which are accorded substantial weight if
they “describe the justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within the claimed
exemptions, and show that the justifications are not controverted by contrary
evidence in the record or by evidence of [agency] bad faith.” Id. at 769 (quoting
Hunt v. CIA, 981 F.2d 1116, 1119 (9th Cir. 1992)).
Exemption 3 allows for withholding documents “specifically exempted from
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disclosure by statute . . ., if that statute . . . (i) requires that the matters be withheld
from the public in such a manner as to leave no discretion on the issue.” 5 U.S.C.
§ 552(b)(3). The Federal Rules of Criminal Procedure, in turn, prohibit disclosure
of “a matter occurring before the grand jury.” Fed. R. Crim. P. 6(e)(2). “[T]he
scope of the secrecy [under Rule 6(e)] is necessarily broad. It encompasses not
only the direct revelation of grand jury transcripts but also the disclosure of
information which would reveal ‘the identities of witnesses or jurors, the
substance of testimony, the strategy or direction of the investigation, the
deliberations or questions of the jurors, and the like.’” Fund for Constitutional
Gov’t v. Nat’l Archives & Records Serv., 656 F.2d 856, 869 (D.C. Cir. 1981)
(quoting SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980)).
According to the Magaw Declaration, the Secret Service withheld and
redacted pages under Exemption 3 “as information that was obtained pursuant to a
Grand Jury investigation into plaintiff, or information pertaining to how that
Grand Jury investigation proceeded. This information includes Grand Jury
subpoenas, and the documents obtained via those subpoenas; names of individuals
subpoenaed in the Grand Jury investigation; and notes of the proceedings of the
Grand Jury investigation.” (Doc. 16 at ¶ 42.) The Supplemental Vaughn Index,
which now provides the Court with an adequate factual basis to reach a decision as
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to the propriety of the information withheld and redacted under Exemption 3,
describes in more detail the information and its association with the grand jury
investigation. (Doc. 35-1.) The information withheld includes: descriptions of
evidence submitted to the grand jury; documents requested for the grand jury
investigation; grand jury subpoenas; names of subpoena recipients, including
witnesses; actions taken regarding grand jury subpoenas; documents produced
pursuant to grand jury subpoenas; and descriptions of and memoranda related to
subpoenaed documents.
All of the information was properly redacted and withheld under Exemption
3 because it “falls within the broad reach of grand jury secrecy.” Fund for
Constitutional Gov’t, 656 F.2d at 869. The identities of witnesses and documents
subpoenaed as exhibits are plainly covered by the exemption, while subpoenas and
their recipients, descriptions of evidence, actions taken, and subpoenaed
documents, and related correspondence would reveal the strategy or direction of
the investigation. Id.; see also Church of Scientology Int’l v. U.S. Dep’t of Justice,
30 F.3d 224, 234 (1st Cir. 1994) (“documents identified as grand jury exhibits, and
whose contents are testimonial in nature or otherwise directly associated with the
grand jury process” may be withheld); Bartko v. U.S. Dep’t of Justice, 62 F. Supp.
3d 134, 146 (D.D.C. 2014) (Exemption 3 covers documents that “contain
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information about the names of recipients of federal grand jury subpoenas;
information that identifies specific records subpoenaed by a federal grand jury;
and copies of specific records provided to a federal grand jury in response to
federal grand jury subpoenas”); Brunetti v. FBI, 357 F. Supp. 2d 97, 105 (D.D.C.
2004) (proper to withhold “grand jury subpoenas, as well as the names and other
identifying information of the individuals named in the subpoenas, [and] records
subpoenaed by the grand jury [because they] would reveal the substance of the
grand jury’s investigation as well identify specific evidence considered by the
grand jury”).
McAtee does not seek all information that was withheld under Exemption 3.
Instead, she seeks the documents produced in response to grand jury subpoenas
and the documents used as grand jury exhibits. She asserts that because she seeks
the documents for their own sake and not to learn what took place before the grand
jury, they should be disclosed, but she is incorrect. McAtee’s reliance on cases
that address disclosure of grand jury materials outside of the FOIA context is
misplaced, as “reference to cases ordering disclosure of grand jury information for
use in other [non-FOIA] proceedings based upon a showing of particularized need
are of only limited utility.” Fund for Constitutional Gov’t, 656 F.2d at 869. In
such cases, government agencies seek the production of private entities’ records
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directly from the private entities, and the private entities attempt to prevent
disclosure of their records based on the fact that the records are also the subject of
grand jury investigations. See United States v. Dynavac, Inc., 6 F.3d 1407 (9th
Cir. 1993) (authority of the IRS to examine records of private corporation); SEC v.
Dresser Indus., Inc., 628 F.2d 1368 (D.C. Cir. 1980) (authority of SEC to require
private corporation to produce its records); United States v. Interstate Dress
Carriers, Inc., 280 F.2d 52 (2d Cir. 1960) (authority of Interstate Commerce
Commission to inspect records of private corporation). In contrast, McAtee seeks
the records of private entities not directly from the private entities but instead from
the Secret Service, which has the records as a result of a grand jury investigation.
McAttee cannot use FOIA in this way to obtain the records she seeks for her case
against Whitefish Credit Union and its counsel, Morrison & Frampton, PLLP.
Because releasing the pages would “disclose matters occurring before the grand
jury,” Fed. R. Crim. P. 6(e)(2), the Secret Service has met its burden of
demonstrating that the redacted and withheld pages fall within Exemption 3.
III.

Segregation
The Secret Service must establish that all reasonably segregable portions of

withheld documents have been segregated and disclosed. Hamdan, 797 F.3d at
779. As to the documents redacted under Exemption 3, a review of the pages
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shows that all reasonably segregable portions of the redacted pages were
disclosed, and only those portions that are exempt, such as names of subpoena
recipients and witnesses and descriptions of evidence, were redacted.
Additionally, the pages withheld in full included subpoenas, documents produced
for the grand jury, affidavits of actions taken for the grand jury proceeding, and
responses to grand jury subpoenas, all of which have no segregable portion to
disclose. (See generally Doc. 29-1; Doc. 16 at ¶¶ 56–57.)
Accordingly, IT IS ORDERED that the Secret Service’s motion (Doc. 19) is
GRANTED in that it properly redacted information under Exemption 3.
IT IS FURTHER ORDERED that McAtee’s motion (Doc. 23) is DENIED,
in that the Secret Service properly redacted information under Exemption 3.
IT IS FURTHER ORDERED that the Clerk of Court is directed to enter
judgment in favor of Defendant and close this case.
DATED this 10th day of August, 2016.

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