Bagwell v. DOJ, No. 15-531, 2022 WL 602448 (D.D.C. Mar. 1, 2022) (Cooper, J.)

Bagwell v. DOJ, No. 15-531, 2022 WL 602448 (D.D.C. Mar. 1, 2022) (Cooper, J.)

Re:  Request for records concerning possible child sexual abuse on Penn State's campus

Disposition:  Granting in part and denying in part defendant's motion and denying plaintiff's cross-motion for partial summary judgment

• Exemption 3:  "DOJ argues that Exemption 3, in conjunction with Rule 6(e), permits withholding of the entirety of the . . . records because releasing 'emails obtained by grand jury subpoena from Pennsylvania State University is likely to pierce the veil of secrecy over the direction of the grand jury investigation.'"  "DOJ claims, in effect, that revealing almost any material obtained via a grand jury subpoena would tend to improperly reveal the scope and direction of the grand jury's investigation . . .  but binding D.C. Circuit case law precludes the Court from applying such a broad rule."  Plaintiff "'did not request documents related to a grand jury; he sought documents about particular people' and '[t]he government revealed the existence of a grand jury' through its withholding decision.'"  "As another court in this district has observed, where 'testimony or data is sought for its own sake for its intrinsic value,' rather than 'to learn what took place before the grand jury,' many of the traditional considerations supporting Rule 6(e) 'are unlikely to be present.'"  "And on the current record—with all 11,000-plus pages described in a single Vaughn index entry—it is impossible to tell whether any concerns about grand jury secrecy are in fact implicated by the documents here."  "And significantly, DOJ never avers that all 11,000 pages contain such potentially sensitive information, nor that [plaintiff] would be able to reconstruct anything specific about the target or direction of the investigation from such a large data set."  "While the Department may take a categorical approach with its disclosures . . . those categories must be specific enough to permit a meaningful inquiry using the standards the D.C. Circuit has provided."  "On this record, the Department's rationale is simply too 'conclusory' for the Court to do so."
  
  "On remand, DOJ must consider whether the documents at issue would have 'necessarily evince[d] their connection to a grand jury,' in a way that 'could not be dealt with through redactions,' had they been released before DOJ invoked Rule 6(e)."  "While few courts have addressed how the government can meet this standard in the wake of Labow, the Court has gleaned several broad guiding principles."  "Most basically, the material must be—without the government saying so—'identifiable as materials sought by the grand jury.'"  "Material might on its face evince a connection to the grand jury—through substantive references to the grand jury, or through a grand jury 'heading or exhibit stamp' that cannot be effectively redacted."  "In addition, in the Court's view, if a requester has independent knowledge of the existence of a grand jury—through public reporting or personal experience as a witness or target—a prosecutor's possession of certain documents could confirm, or at least suggest, that they were obtained via grand jury investigation."  "And if the material is so identifiable, the Department still must demonstrate that disclosure would 'tend to reveal some secret aspect of the grand jury's investigation, including' its 'strategy or direction.'"  "In some instances, copies of specific records produced pursuant to a subpoena may fit this bill—for example, if they disclose the recipient of the subpoena, identify specific subjects of investigation, or reveal new information about the scope of the grand jury's attention."  "A group of documents could likewise qualify, if, when taken together, there are signs of culling or organization that would tend to reveal where the grand jury set its focus."
  
  "For two of the remand records, the Department justified its withholding decision in part under FOIA Exemption 3 and Federal Rule of Criminal Procedure 6(e), again invoking the need to protect grand jury secrecy."  "According to the Vaughn index, this email identifies a potential grand jury witness as such."  "Because that is precisely the kind of 'secret aspect of the grand jury's investigation' contemplated by Rule 6(e) . . . the Court affirms the use of that exemption here."
   
• Exemption 7(D):  "The parties largely disagree about whether Penn State University—the source of the material in the inadvertently overlooked records—qualifies as a 'confidential source,' as required for application of this exemption."  "The Court concludes DOJ has not shown that the University was a confidential source, so it likewise cannot justify a blanket withholding under Exemption 7(D)."  "DOJ has not shown that Penn State was granted confidentiality, either expressly or by implication."  "As an initial matter, the Department does not argue that the University was ever expressly offered confidentiality."  "But it does contend that a guarantee of confidentiality can be inferred because Penn State furnished these records to 'federal investigators solely under the presumed confidentiality of the grand jury investigation.'"  "In DOJ's view, essentially any recipient of a subpoena issued by a grand jury investigating a serious or sensitive crime, when submitting evidence pursuant to a subpoena, could infer that a confidentiality agreement exists."  "But DOJ has pointed to no case to support such a broad approach to confidentiality, nor could the Court find one."  "And that is likely for good reason; DOJ's rule would eviscerate the well-established, carefully drawn limits on the invocation of grand jury secrecy under Exemption 3 catalogued above."  "To be sure, the Supreme Court has indicated that 'the nature of the crime that was investigated and the source's relation to it' are relevant to whether an inference of confidentiality exists."  "But Penn State is a large and well-represented public institution—a far cry from the 'witness[ ] to a gang-related murder' the Supreme Court offered as an example of someone who might be 'unwilling to speak . . . except on the condition of confidentiality.'"  "The only other suggestion of confidentiality advanced by the Department is a statement from the EOUSA FOIA officer that, after the filing of this case, she spoke with an Associate General Counsel at Penn State, who 'expressed his belief that records turned over via grand jury subpoena would remain confidential, absent a federal criminal prosecution.'"  "This general, post-hoc, hearsay rationale is unavailing." "Even taken at face value, Penn State's belief that a confidentiality agreement existed—without knowing the foundation for that belief—is not enough."  "DOJ must show that circumstances at the time gave rise to an 'implied assurance of confidentiality.'"
   
• Exemptions 6 and 7(C):  "DOJ never claims that these two exemptions could justify the complete withholding of all 11,648 pages of . . . records."  "As a result, the Court need not—indeed cannot—decide now whether any specific redactions would be proper under these exemptions."
   
• Exemption 5, Attorney Work Product:  Plaintiff "does not specifically challenge any of the withholding decisions laid out in the Vaughn index, but asserts generally that the Department has not adequately demonstrated that litigation was a real possibility at the time these emails were sent."  Plaintiff "focuses on the Safecard court's warning 'that the work product exemption, read over-broadly, could preclude almost all disclosure from an agency with substantial responsibilities for law enforcement.'"  "But, as it was in 2018, the Court is convinced that the emails at issue were prepared as part of an active investigation into specific misconduct, and thus fall squarely under the general Safecard rule outlined above."  "The declarations of [the] agency FOIA officer . . . indicate that the withheld documents include internal emails weighing the decision to subpoena certain documents, . . . communications with other federal agencies about 'potential investigation strategy,' . . . and discussions of 'witness interviews . . . potential grand jury witnesses . . . [and] victim interviews and their impact on the unfolding investigation.'"  "To refute this conclusion, [plaintiff] avers generally that prosecutors in the U.S. Attorney's Office did not actually believe any charges were likely, and were instead engaging in 'a classic fishing expedition.'"  "But DOJ has declared that these emails contained investigation and litigation strategy related to specific individuals, . . . and that representation is entitled to a presumption of good faith."
   
• Litigation Considerations, Reasonably Segregable Requirement:  "Here, the Department has met its burden to demonstrate that it adequately searched for and released segregable material, and [plaintiff] has not put forward any evidence to rebut that conclusion."  "EOUSA's FOIA officer attested to a line-by-line review of the material, and she explained that the agency had segregated and released certain 'non-exempt information' where possible."  "And for the material withheld in full, detailed descriptions in the Vaughn index indicate the privileged nature of the entire document."  "[Plaintiff] offers no evidence to suggest that DOJ shirked its obligation to search for and release segregable material, so the Court is satisfied it did so."
   
• ​​​​​​​Litigation Considerations, Foreseeable Harm:  "Signed into law on June 30, 2016, the [FOIA Improvement Act] includes an 'applicability' section declaring that it 'shall take effect on the date of enactment . . . and shall apply to any request for records . . . made after the date of enactment.'"  "[Plaintiff] nevertheless urges the Court to find the [FOIA Improvement Act] applies retroactively, pointing out that the statute does not say it only applies to requests made after the enactment date.'"  "Crucially, however, [plaintiff] offers no case affirmatively holding that the [FOIA Improvement Act] applies retroactively, and the Court has found none."  "Rather, the Court located several cases—including binding D.C. Circuit precedent—expressly declining to apply the [FOIA Improvement Act's] foreseeable harm standard because the relevant requests were made before June 2016."