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Murphy v. Executive office for United States Attorney

United States Court of Appeals, District of Columbia Circuit

June 16, 2015


Argued: May 12, 2015.

Appeal from the United States District Court for the District of Columbia. (No. 1:13-cv-00573).

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 filed by Circuit Judge HENDERSON.


Page 205

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, 376 U.S.App.D.C. 289 (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.

Page 206


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, 364 U.S.App.D.C. 274 (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, 211 U.S.App.D.C. 267 (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, 403 U.S.App.D.C. 255 (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 F.App'x 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 ...

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