Toensing v. DOJ, No. 11-1215, 2013 WL 6017615 (D.D.C. November 14, 2013) (Howell, J.)

Thursday, November 14, 2013
Re: Request for records concerning criminal investigation in which requesters were subpoenaed to testify before a grand jury Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment
  • Exemption 5, Attorney Work Product:  The court determines that defendant appropriately invoked Exemption 5 in response to plaintiff's request because "[t]he description of each document confirms that they were prepared 'in anticipation of litigation' and were authored by DOJ Attorneys."  The court also dismisses an objection raised by plaintiff and finds that under the Supreme Court's ruling in FTC v. Grolier "courts need not consider whether certain documents might be discoverable 'in any particular litigation' before determining if the documents may be withheld under Exemption 5."   Instead, the standard is whether the "'documents would be 'routinely' or 'normally' disclosed'" and so "exceptions to discovery privileges are not properly considered under Exemption 5."
  • Litigation Considerations, Vaughn Index:  The court rejects plaintiffs' objection to the adequacy of defendant's Vaughn Index and finds that, "[i]n the instant matter, the dates of the documents and the names of their authors are irrelevant to a determination of whether the documents are protected as attorney work product.  Each document is identified as having been prepared by Department of Justice attorneys and each document's description adequately explains the nature of the document and why it is subject to the privilege."
  • Exemption 3:  The court finds that one document at issue "is properly withheld as prohibited from disclosure under Rule 6(e) and, consequently, exempt from disclosure under FOIA Exemption 3."  The court notes that the document "'discusses the grand jury investigation [related to the plaintiffs' FOIA request] in detail . . . [and] . . . concerns matters occurring before the grand jury, and has attachments supporting the [judicially] sealed filing.'"  The court also finds that "plaintiffs' belief that they were wrongly subpoenaed is simply irrelevant to the applicability of exemptions under the FOIA."
District Court
Exemption 3
Exemption 5
Litigation Considerations
Vaughn Index
Updated August 6, 2014