Murphy v. Exec. Office for U.S. Attorneys

Decision Date16 June 2015
Docket NumberNo. 14–5044.,14–5044.
Citation789 F.3d 204
PartiesJames E. MURPHY, Appellant v. EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Ishan K. Bhabha, appointed by the court, argued the cause for the appellant. David W. DeBruin and Paul M. Smith, appointed by the court, were with him on brief.

James E. Murphy, pro se, filed the brief for the appellant.

Peter R. Maier, Assistant United States Attorney, argued the cause for the appellee. Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and R. Craig Lawrence, Assistant United States Attorney, were with him on brief. Dionne S. Shy, Assistant United States Attorney, entered an appearance.

Before: HENDERSON, ROGERS and MILLETT, Circuit Judges.

Opinion

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge:

James Murphy is a federal prisoner. He submitted a request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to the Executive Office for United States Attorneys (EOUSA), a part of the United States Department of Justice. See Harris v. Gonzales, 488 F.3d 442, 443 (D.C.Cir.2007). FOIA requires federal agencies to produce “records” upon request unless one of nine statutory exemptions applies. 5 U.S.C. § 552(a)(3)(A). Murphy sought grand jury information for two criminal cases. The EOUSA gave Murphy most of the information that he requested but it declined to disclose the dates and times of day that the grand jury met to hear testimony and consider evidence in the two cases. The EOUSA invoked exemption 3 to justify its non-disclosure. Murphy contends—unsurprisingly—that exemption 3 is inapplicable and filed suit to compel the EOUSA to disclose the withheld material. The district court ultimately held that exemption 3 was properly invoked and granted summary judgment to the EOUSA. We affirm.

I

FOIA implements “a general philosophy of full agency disclosure.” DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 754, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). The statute requires federal agencies to make “records promptly available” when an individual submits a “request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules.” 5 U.S.C. § 552(a)(3)(A). An agency, however, can reject the request if it “fall[s] within one of nine exemptions.” Milner v. Dep't of Navy, 562 U.S. 562, 131 S.Ct. 1259, 1262, 179 L.Ed.2d 268 (2011) ; see 5 U.S.C. § 552(b)(1)-(9). The United States Supreme Court has stated that the exemptions must be “narrowly construed” because “the mandate of the FOIA calls for broad disclosure of Government records.” DOJ v. Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988) (alteration omitted). The Court has also cautioned, however, that each exemption must be given “meaningful reach and application.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989).

The exemption relevant here is exemption 3, which permits an agency to withhold records that are “specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3). We have recognized that “requests for documents related to grand jury investigations implicate FOIA's third exemption.” Lopez v. DOJ, 393 F.3d 1345, 1349 (D.C.Cir.2005). Rule 6(e) of the Federal Rules of Criminal Procedure prohibits certain persons designated therein (including government attorneys) from “disclos[ing] a matter occurring before the grand jury,” Fed.R.Crim.P. 6(e)(2)(B), and, although a rule is not generally considered to be a statute, it qualifies as one under FOIA because the Congress has enacted it into positive law. See Fund for Constitutional Gov't v. Nat'l Archives and Records Serv., 656 F.2d 856, 867–68 (D.C.Cir.1981) (citing Pub.L. No. 95–78, § 2(a), 91 Stat. 319 (1977) ). Hence, information related to a grand jury matter may be withheld under exemption 3 “if the disclosed material would tend to reveal some secret aspect of the grand jury's investigation, including the identities of witnesses.” Hodge v. FBI, 703 F.3d 575, 580 (D.C.Cir.2013) (quotation marks omitted).

In 2008, Murphy was charged with distribution, possession and conspiracy to distribute and possess heroin and crack cocaine. See United States v. Murphy, 460 Fed.Appx. 122, 123 (3d Cir.2012). He was convicted of both counts after a two-day jury trial and sentenced to 360 months' imprisonment. Id. In 2013, Murphy submitted two FOIA requests to the EOUSA for “information and documents.” Joint Appendix (JA) 25, 31. His first FOIA request asked for:

disclosure of the dates that the grand jury convened in reference to case # 1:08–CR–00433 and case # 1:08–CR–314 filed in U.S. District Court for the Middle District of Pennsylvania including the names [sic] of the Judge who summoned the grand jury, the date the indictments were returned, the date they were discharged, the starting and ending date of the grand jury's term, and a certified copy of the courts [sic] minute entries.

Id. at 39. Case number 08–CR–00433 is Murphy's criminal case and case number 08–CR–00314 is a criminal case involving Richard Byrd.

Approximately two months later, Murphy submitted a second FOIA request that sought:

disclosure of the dates the grand jury issued the indictments pertaining to criminal No. 1:08–CR–314 and 1:08–CR–0433 ... including the dates and times of sessions the grand jury convened, whether it was summoned pursuant to Fed.R.Crim.P. 6(a), or 18 U.S.C. 1331, and the certified letter requesting the special grand jury ... the caption of the indictment ... [and] an unredacted copy of the indictment of Case No. 1:08–CR–314 pursuant to Fed.R.Crim.P. 49.1(b)(9).

Id. at 42. Before the EOUSA responded to his requests, Murphy filed suit in federal district court.1 He challenged the EOUSA's invocation of exemption 3 and alleged that the grand jury indictments were inaccurate and that the EOUSA's search for records was inadequate. He asked the court to order the EOUSA to produce the “agency records previously requested by [him].” Am. Compl. ¶ 1.

After Murphy filed his complaint, the EOUSA responded to both of his FOIA requests. It first told Murphy that it intended to disclose “all records required to be released, or considered appropriate for release as a matter of discretion.” JA 45. These included “the date the grand jury was impaneled and expired; the name of the judge who supervised the grand jury; [and] the date on which the grand jury was convened and returned an indictment for each particular criminal case.”Id. at 37. It also disclosed that both of the “grand juries ... were summoned pursuant to Fed.R.Crim.P. 6(a).” Id. at 47. Other than its disclosure of the date on which the grand jury issued indictments, the EOUSA declined to provide the specific dates and “times the grand juries convened” between the date of empanelment and the date each grand jury was discharged “in order to protect the identity of witnesses and the secrecy of the grand jury proceedings.” Id. It invoked exemptions 3 and 7(C) to support its decision.2 Id.

Less than one month after responding to Murphy's second FOIA request, the EOUSA moved for summary judgment. The district court granted the motion in part. See Murphy v. EOUSA, 11 F.Supp.3d 1, 3 (D.D.C.2013). It held that Murphy's claims regarding the accuracy of the records and the adequacy of the government's search were premised on a “misunderstanding.” Id. at 5. According to the court, Murphy's claim that some of the records were inaccurate and that others did not disclose what he “expected to find” did not amount to a FOIA violation. Id. It then found the EOUSA's declaration, executed by EOUSA attorney advisor Kathleen Brandon, insufficient because it contained only one “obscure statement” related to exemption 3. Id. at 6. The court therefore ordered the EOUSA to disclose each date and the times of day on each date that the grand jury convened to consider Murphy's and Byrd's cases.3 Id. at 7.

Both parties moved for reconsideration. See Murphy, 11 F.Supp.3d at 8. The EOUSA also filed a supplemental declaration, again executed by Brandon, in support of its motion. The district court noted that Murphy's motion for reconsideration contained the same arguments he had previously made regarding the adequacy of the search and the accuracy of the records. See id. at 8–9. Because he did not identify “an intervening change in the law,” “new evidence not previously available” or “a clear error in the first order,” the district court denied his motion. Id.

The district court, however, granted the EOUSA's motion for reconsideration after reviewing the withheld material in camera and concluding that it “contain [ed] information that would reveal secret aspects of a grand jury investigation.” Id. at 9. Additionally, the court held that the withheld material was “inextricably intertwined” with non-exempt information, making it infeasible to segregate and produce any unprotected information. Id. Accordingly, it granted summary judgment to the EOUSA. Id. Murphy timely appealed. We appointed amicus curiae to present arguments in support of Murphy's position.

II

We review de novo the district court's grant of summary judgment. McKinley v. Bd. of Governors of Fed. Reserve Sys., 647 F.3d 331, 335 (D.C.Cir.2011). Our task on appeal is to “ascertain whether the agency has sustained its burden of demonstrating that the documents requested are exempt from disclosure under the FOIA.” Newport Aeronautical Sales v. Dep't of Air Force, 684 F.3d 160, 164 (D.C.Cir.2012) (alteration omitted). An agency can meet this burden by submitting “affidavits [that] describe the justifications for nondisclosure with reasonably specific detail” and “demonstrate that the information withheld logically falls within the claimed exemption.” Larson, 565 F.3d at 862. We have emphasized that an agency's task is not herculean. The justification for invoking a F...

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