Flete-Garcia v. DOJ, No. 19-2382, 2021 WL 1146362 (D.D.C. Mar. 25, 2021) (Moss, J.)

Flete-Garcia v. DOJ, No. 19-2382, 2021 WL 1146362 (D.D.C. Mar. 25, 2021) (Moss, J.)

Re:  Requests for records concerning plaintiff's criminal conviction

Disposition:  Granting in part and denying in part defendant's motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  "The Court will . . . grant summary judgment in favor of [Executive Office for the United States Attorneys ("EOUSA")] with respect to Request No. 1."  The court finds that "the uncontroverted record shows that EOUSA responded to Request No. 1 'within twenty business days . . . .'"  "And, in any event, EOUSA responded to Plaintiff's FOIA request before Plaintiff brought this action."  "Plaintiff was, therefore, required to exhaust his administrative remedies before bringing suit."  The court finds that "Plaintiff has had ample opportunity to respond to EOUSA's motion for summary judgment and, in particular, to its exhaustion defense, yet he has failed to do so."  "Under those circumstances, the Court should not be left to guess about whether Plaintiff might have been misled; if he was misled, he could have, and should have, submitted a declaration explaining what happened and why he did not appeal."  "Second, when read in context, EOUSA's denial of his claim would not have confused a reasonable person."  "EOUSA told Plaintiff that its decision was final, and it explained that Plaintiff would need to lodge any administrative appeal within 90 days."  "That was enough to put Plaintiff on clear notice of his obligation to exhaust administrative remedies before bringing suit."
   
• Procedural Requirements, Proper FOIA Requests:  First, the court holds that "Plaintiff has done all one might reasonably ask of a FOIA requester, at least with respect to Request Nos. 3 and 5: he has submitted documentary evidence showing that the requests were, in fact, mailed to 'EOUSA' at the correct address . . . and that the mailings were signed for upon receipt . . . ."  "EOUSA, for its part, answers that 'EOUSA staff checked the mail logs' for its FOIA/PA office and were 'unable to locate any correspondence from Plaintiff regarding these . . . requests.'"  "But that still leaves an evidentiary gap."  "Notably, EOUSA offers very little information about what did happen – or, indeed, even about what might have happened – here."  "It does not identify who signed for the mailings, and it did not, as far as the Court can discern, investigate what happened to the requests, beyond merely concluding that they were never logged."  "EOUSA also says nothing about who is responsible for ensuring that mail received at the screening location is delivered to the appropriate component."  "Without additional information – and perhaps an evidentiary hearing – the Court cannot conclude that EOUSA has carried its summary judgment burden of demonstrating that there is no material issue in dispute."  Second, regarding "Request No. 2," the court finds that "it was at least arguably misaddressed, thus providing some explanation for why the request was never logged."  "Although that may well explain what happened, the Court will refrain from granting summary judgment in favor of EOUSA with respect to this claim because, while plausible, this is not the defense EOUSA has presented, and the Court cannot determine on the present record whether the address that Plaintiff used was sufficient."
   
• Exemption 3:  The court notes that EOUSA uses Exemption 3 in conjunction with Federal Rule of Criminal Procedure 6(e).  The court relates that "[i]n Request No. 4, Plaintiff sought:  (1) orders reflecting the commencement, termination, and extensions of the grand jury; (2) transcripts of the instructions and charges given to any grand jury; (3) '[a]ll [g]rand [j]ury voting records;' and (4) attendance records, 'including names, times, and dates, of all [g]rand [j]urors.'"  "'Grand jury transcripts' are, of course, 'the prototypical grand jury material exempt from disclosure under Rule 6(e)[ ] and are thus protected from disclosure by Exemption 3.'"  "Similarly, for the attendance records that Plaintiff seeks, their disclosure would require revealing '"the identities of . . . jurors,"' which is also foreclosed by Rule 6(e)."  "And, Plaintiff's request for grand jury voting records would also require disclosure of core, protected information."  "Voting records clearly constitute a 'secret aspect' of the grand jury's investigation and are thus shielded from disclosure pursuant to Rule 6(e)."  "The Court, however, is unconvinced – at least on the present record – that EOUSA has shown that it is entitled to summary judgment with respect to the remaining portions of Request No. 4."  "Most notably, Plaintiff asked EOUSA to release 'orders that reflect the [c]ommencement, [t]ermination, and any extensions of the [g]rand [juries] that heard evidence in' his case."  "Unlike the other grand jury information sought by Plaintiff, it is not immediately evident why such orders would 'tend[ ] to reveal some secret aspect of the grand jury’s investigation.'"  "EOUSA needs to offer a declaration or other evidence explaining why disclosure would 'tend to reveal some secret aspect of the grand jury's investigation, such matters as the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.'"