Smith v. Bharara

Background

John Smith, who represented himself, sued the Executive Office for United States Attorneys (EOUSA) under the Freedom of Information Act. His two requests sought records concerning his transfer from state custody to federal custody in 2011, including a writ and supporting affirmation requested by Assistant United States Attorney Nola Heller.

The court had previously denied the EOUSA’s first motion for summary judgment without prejudice to renewal. At that time, the court found that the agency had not shown that its search was adequate, particularly because it had used inconsistent and limited search terms. The court directed the EOUSA to conduct broader, more uniform searches and report the results.

Renewed Search

On renewal, the EOUSA submitted evidence that it searched all electronic sources likely to contain responsive records, including CaseView, Lexis CourtLink, locally stored electronic files, AUSA Heller’s archived emails, and records sought from the court’s Clerk’s Office. It used a broad set of search terms, including several identification numbers and alternative spellings of Smith’s name.

The searches produced 136 pages of records. The EOUSA identified four responsive documents and produced one: a two-page proffer agreement dated July 14, 2010. It withheld three documents: an unsigned draft writ, an unsigned draft supporting affirmation, and a final signed writ.

Adequacy of the Search

The court held that the renewed search was adequate. Under the Freedom of Information Act, an agency must show that its search was reasonably calculated to find the requested records; it does not have to show that the search found every existing document. The court concluded that the EOUSA’s broad searches across several likely sources met that standard.

Withholding Under Exemption 3

The EOUSA relied primarily on Freedom of Information Act Exemption 3, which protects information specifically shielded from disclosure by another law. It invoked Federal Rule of Criminal Procedure 6(e), which protects matters occurring before a grand jury.

The EOUSA represented that each withheld document stated that Smith’s presence in federal custody was sought in connection with a matter being investigated by a grand jury. The court concluded that disclosure could reveal secret aspects of the grand-jury investigation, including witness identities. It therefore held that all three withheld documents fell within Rule 6(e) and Exemption 3.

The court rejected Smith’s arguments that his personal need for the documents or his possible status as the only person whose secrecy would be affected required disclosure. It also concluded that the existence of the writ and affirmation had not waived the protections because Smith’s identity and details about the proposed grand-jury testimony remained concealed, and there was no showing that the documents themselves were publicly available. The court did not reach the EOUSA’s other asserted grounds for withholding.

Other Requests and Disposition

The court rejected Smith’s argument that the agency’s later discovery of responsive records showed bad faith. It also declined to order additional discovery, require a Vaughn index—a description of withheld records and the grounds for withholding—or conduct private review of the documents. The court found those steps unnecessary because the agency had adequately described the small number of withheld documents and the record did not show bad faith or inadequate declarations.

The court did not award damages under the Privacy Act because Smith had not asserted a Privacy Act claim. It also found that he had not shown entitlement to attorney’s fees under the Freedom of Information Act, noting that self-represented litigants generally cannot receive prevailing-party attorney’s fees under that statute.

Judge Laura Taylor Swain granted the EOUSA’s renewed motion for summary judgment, directed the Clerk of Court to enter judgment, and ordered the case closed.