Toensing v. United States Department of Justice
999 F. Supp. 2d 50
D.D.C.2013Background
- In 2007 the plaintiffs, attorneys Victoria Toensing and Joseph diGenova, submitted a FOIA request to EOUSA seeking records related to grand-jury subpoenas issued to them in 2003.
- A prior decision ordered a supplementary search because EOUSA had instructed the U.S. Attorney not to forward six categories of documents during the initial search.
- The supplementary search produced six responsive documents (174 pages); the DOJ withheld all six in full under Exemption 3 (grand jury/Rule 6(e)) and portions under Exemption 7(C); Documents 1–5 were also withheld under Exemption 5 as work product/deliberative.
- Plaintiffs challenge the withholdings and argue alleged prosecutor misconduct and DOJ guideline violations vitiate the claimed privileges; they also contend the Vaughn index is insufficient and requested in camera review.
- The Court evaluated (1) applicability of Exemption 5 (attorney work product) to Docs 1–5, (2) applicability of Exemption 3/Rule 6(e) to Doc 6, and (3) segregability and adequacy of the Vaughn index.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Documents 1–5 are exempt under Exemption 5 (attorney work product) | Plaintiffs: misconduct and DOJ guideline violations mean privilege should not apply | DOJ: documents reflect legal analysis, trial strategy, and were prepared in anticipation of litigation; hence work product protected | Court: Documents 1–5 are protected work product and exempt under Exemption 5; misconduct allegations do not defeat Exemption 5 in FOIA context |
| Whether Document 6 is exempt under Exemption 3 via Rule 6(e) (grand jury secrecy) | Plaintiffs: subpoena was public in related litigation; misconduct means the document should be disclosed | DOJ: Document 6 discusses grand jury matters and would reveal secret aspects protected by Rule 6(e) | Court: Document 6 falls within Rule 6(e) and is exempt under Exemption 3 |
| Segregability — whether non-exempt portions must be released | Plaintiffs: some material possibly segregable; Vaughn index sparse | DOJ: documents are entirely protected (work product or grand-jury material) and not reasonably segregable | Court: No segregable nonexempt material; segregation not required for fully protected work product or grand jury material |
| Adequacy of Vaughn index / need for in camera review | Plaintiffs: Vaughn index lacks dates/authors and is boilerplate; request in camera review | DOJ: index and declarations provide sufficient detail without revealing protected content | Court: Supplemental Vaughn index and declarations are sufficient; in camera review unnecessary |
Key Cases Cited
- Grolier, Inc. v. FTC, 462 U.S. 19 (1983) (Exemption 5 should be construed to provide a workable, categorical rule protecting materials normally privileged in discovery)
- Klamath Water Users Protective Ass'n v. United States Dep't of Interior, 532 U.S. 1 (2001) (records withheld under Exemption 5 must be inter- or intra-agency and fall within a judicial privilege)
- Hickman v. Taylor, 329 U.S. 495 (1947) (foundation of attorney work product protection)
- ACLU v. U.S. Dep't of Def., 628 F.3d 612 (D.C. Cir. 2011) (agency bears burden to justify FOIA exemptions; affidavits may suffice when detailed and uncontradicted)
- Judicial Watch v. U.S. Dep't of Justice, 432 F.3d 366 (D.C. Cir. 2005) (work product doctrine is interpreted broadly in FOIA context)
- Hodge v. FBI, 703 F.3d 575 (D.C. Cir. 2013) (Rule 6(e) grand-jury secrecy falls within Exemption 3 when material would reveal secret aspects of the investigation)