Muhammad v. EOUSA, No. 18-3159, 2020 WL 1331999 (D.D.C. Mar. 23, 2020) (Kelly, J.)

Muhammad v. EOUSA, No. 18-3159, 2020 WL 1331999 (D.D.C. Mar. 23, 2020) (Kelly, J.)

Re:  Request for records concerning plaintiff's criminal conviction

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Exemption 3:  First, the court finds that "Rule 6(e) justifies EOUSA's withholding of the grand jury materials in question here from [plaintiff]."  The court relates that "EOUSA withheld 28 pages of grand jury subpoenas that plainly fall under Rule 6(e)'s shield of 'matters occurring before the grand jury.'"  "EOUSA also withheld nine 'one-page letter[s]' from the United State[]s Attorney's Office for the Eastern District of Virginia, which prosecuted [plaintiff], to private citizens 'directing th[em] to produce certain records before a grand jury' in a 'narcotics, domestic violence, and child endangerment investigation.'"  The court finds that "[t]hose letters are no less deserving of protection from disclosure under Rule 6(e) – they reveal 'the identities of witnesses' and 'potential document[s]' presented to the grand jury that would divulge the 'strategy or direction' of its investigation into [plaintiff]."
  
  Second, the court finds that "the Child Victims' Act, 18 U.S.C. § 3509(d), 'qualifies as an Exemption 3 withholding statute,' . . . and prohibits disclosure of 'the name or any other information concerning a child' victim of crime . . . ."  "It justifies EOUSA's withholding of the parts of three pages of 'USAO-EDVA (Richmond) case tracking and notes' that describe 'children who were the victims of sexual exploitation,' which appear to be the only portions of these three pages that [plaintiff] seeks."  The court relates that "[plaintiff] argues that the Child Victims' Act does not bar disclosure to him because the Act has an exception for 'the defendant,' who is entitled to 'the name of or other information concerning a child.'"  "But that subsection does not affect the statute's prohibition on disclosure in these circumstances."  "[Plaintiff] is no longer a defendant in a criminal proceeding; he seeks these records as a FOIA plaintiff."
   
• Exemption 5, Attorney Work-Product Privilege:  The court holds that "[e]ven if the Child Victims' Act did not bar EOUSA's disclosure, the prosecution's three pages of case notes (and the child victim information contained in those notes) are privileged attorney work product under Exemption 5, which permits withholding of 'inter-agency or intra-agency memorandums or letters . . . [not] available by law to a party other than an agency in litigation with the agency.'"  The court finds that "[the] broad protection for attorney work product encompasses the prosecutors' case notes here, prepared in anticipation of litigation, which reveal their legal strategies, research, and opinions in [plaintiff's] case."