Smith v. EOUSA, No. 19-3572, 2022 WL 393835 (S.D.N.Y. Feb. 9, 2022) (Swain, C.J.)

Smith v. EOUSA, No. 19-3572, 2022 WL 393835 (S.D.N.Y. Feb. 9, 2022) (Swain, C.J.)

Re:  Request for records concerning plaintiff's transfer between state and federal custody

Disposition:  Granting defendant's renewed motion for summary judgment

• Exemption 3:  "[T]he Court concludes that the EOUSA has met its burden of showing that the withheld documents 'fall within an exemption to the FOIA.'"  "EOUSA withheld from production to Plaintiff a signed writ of habeas corpus, a draft version of that writ, and a draft affirmation in support of that writ."  "It withheld these documents primarily on the ground that they are exempt from disclosure under FOIA's third exemption . . . and Federal Rule of Criminal Procedure Rule 6(e)."  The court notes that "[b]y [the records'] very nature . . . disclosure of these documents would reveal at least one secret aspect of the grand jury's investigation (the identi[t]y of witnesses), if not others."  "Indeed, the District of Columbia Circuit has held that writs of habeas corpus ad testificandum issued in connection with grand jury proceedings fall 'categorically' within the scope of FOIA's third exception." 
  
  "Though Plaintiff notes that he is perhaps the only the person whose secrecy would be infringed by disclosure of the withheld documents, and that he has a strong need for those documents, the propriety of an agency's withholding pursuant to Rule 6(e) and FOIA Exemption 3 generally does not depend on the identity or need of the requester . . . and Plaintiff has not shown any particularized need in this case."  "Moreover, the agency has not waived Rule 6(e)’s protections over those documents by virtue of the now-public fact that the writ and affirmation exist, because Plaintiff's identity remains concealed, as do the details of the testimony sought to be presented before the grand jury, and there is no claim that any of the documents themselves are in the public domain."
   
• Litigation Considerations, Adequacy of Search:  "The Court concludes that the EOUSA has now met its burden of showing that it conducted an adequate search for records responsive to Plaintiff's FOIA requests."  "EOUSA searched all of the electronic sources likely to have information responsive to Plaintiff's requests, including CaseView (an electronic database containing records of matters that AUSAs work on), Lexis CourtLink (a public access platform for court electronic records), and locally stored electronic files, as well as . . . archived emails, using a broad set of search terms, including Plaintiff's USAO-SDNY ID number, USMS ID number, NYS ID number, NYDOC ID number, SSN, federal ID number, 'U.S. v. [Plaintiff's Name], et al.,' and various alternative spellings of Plaintiff's name." "The EOUSA also asked the Clerk's Office of this Court for any relevant records."  "Plaintiff argues in particular that the EOUSA's location of the writ of habeas corpus at this stage, after its earlier failed efforts, is further evidence that the agency's prior search efforts were in bad faith."  "However, the Court cannot fault the EOUSA for performing the more thorough search directed by the Court, and declines to penalize the agency for its subsequent discovery of documents responsive to Plaintiff's requests."
   
• Litigation Considerations, Vaughn Index/Declaration, In Camera Inspection:  "Plaintiff requests that the Court either direct the EOUSA to produce a Vaughn index or conduct an in camera review of the documents the agency has withheld or deemed non-responsive."  "[T]he Court declines to require [a Vaughn index] here, where the number of withheld documents is few and the contents of those documents are adequately described."  "Similarly, the Court declines in its discretion to conduct an in camera review . . . ."
   
• Litigation Considerations, Relief & Attorney Fees:  "Plaintiff argues that the Court should award him damages under the Privacy Act or attorneys' fees as the prevailing party in this FOIA action."  "Plaintiff has framed no such claim [for damages] in this case."  "Similarly, Plaintiff has not shown his entitlement to attorneys' fees under FOIA, since it is well established in this Circuit that 'pro se litigants are generally not eligible for prevailing party attorneys' fee awards under the FOIA.'"