Grynberg v. DOJ, No. 17-723, 2018 WL 679489 (S.D.N.Y. Feb. 1, 2018) (Pauley, J.)

Grynberg v. DOJ, No. 17-723, 2018 WL 679489 (S.D.N.Y. Feb. 1, 2018) (Pauley, J.)

Re: Request for records concerning investigation of third party charged with violations of Foreign Corrupt Practices Act

Disposition: Granting defendant's motion for summary judgment

• Litigation Considerations:  The court first notes that "this FOIA action addresses only [plaintiff's] requests for bank records and records from [British Petroleum ("BP")]."  The court relates that "[plaintiff] modified his request during the administrative stage of the FOIA process prior to filing this lawsuit[]" and "[s]ince September 2015, [plaintiff] has maintained the same circumscribed request."

• Exemption 3:  The court agrees with "[t]he Government['s] assert[ion] that all documents within the two categories that [plaintiff] seeks ["bank records and BP records,"] 'were obtained either from Switzerland via the [Mutual Legal Assistance Treaty with Switzerland . . . ] or via a grand jury subpoena[]'" and therefore fall under Exemption 3.  First, the court notes that "[t]he Government avers that producing records subpoenaed by the grand jury would 'publicly reveal the scope and secret aspects of the grand jury investigation by showing where the Government sought its evidence, the sources of information it had relied on to develop the facts of its investigation, and the steps that the Government anticipated taking and actually took in furtherance of the investigation.'"  The court finds that "[plaintiff] fails to rebut this proposition."  Second, the court relates that "[t]he Government asserts that all bank records and BP records not obtained via grand jury subpoenas were obtained from Switzerland via the MLAT."  The court finds that "the U.S.-Swiss MLAT is a Senate-ratified self-executing treaty" and "therefore has the force of law and qualifies as a statute."  Additionally, "the U.S.-Swiss MLAT establishes a particular type of matter to be withheld."  The court finds that the records at issue fall under this coverage "[a]nd 'the emphasis on maintaining confidentiality of assistance requests' seen throughout the U.S.-Swiss MLAT makes this Court 'doubt that Congress intended for [these documents] to be available under FOIA.'"