UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DAVID W. LINDER, 

Plaintiff,

v. 

EXECUTIVE OFFICE FOR UNITED 

STATES ATTORNEYS,

Defendant.

Case No. 18-cv-1029 (TNM)

MEMORANDUM OPINION

Plaintiff David W. Linder, appearing pro se, challenges the Executive Office for 

United States Attorneys’ (“EOUSA”) denial of his Freedom of Information Act (“FOIA”) 

request for grand jury testimony. EOUSA has moved for summary judgment under Rule 

56 of the Federal Rules of Civil Procedure. Mot. for Summ. J., ECF No. 14. Linder has 

filed an opposition, ECF No. 17, and EOUSA has replied, ECF No. 18. For the reasons 

explained below, the Court finds that EOUSA has complied with its FOIA requirements

and is entitled to judgment as a matter of law.

I. 

A federal jury in the Eastern District of Virginia convicted Linder “of all twenty-seven 

counts of the indictment against him,” consisting of various drug distribution offenses and 

related charges. United States v. Linder, 200 Fed. App’x 186, 187 (4th Cir. 2006). Linder’s 

conviction and sentence, including a life sentence on a drug conspiracy count, were affirmed in 

September 2006. Id. In a FOIA request received by EOUSA on October 30, 2017, Linder 

sought the “Grand Jury Testimony of Roy Hammond.” Decl. of Tricia Francis, Attach. A, ECF 

No. 14-2. EOUSA denied Mr. Linder’s request by letter dated December 4, 2017, citing 5 
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U.S.C. § 552(b)(3) (FOIA Exemption 3). Id., Attach. B. Linder administratively appealed to the 

Office of Information Policy, which affirmed EOUSA’s action. Id., Attach. E. 

II. 

FOIA requires federal agencies to “disclose information to the public upon reasonable 

request unless the records at issue fall within specifically delineated exemptions.” Judicial 

Watch, Inc. v. FBI, 522 F.3d 364, 365-66 (D.C. Cir. 2008). In FOIA cases, the district court 

reviews the record de novo, 5 U.S.C. § 552(a)(4)(B), and it views the facts and draws all 

inferences “in the light most favorable to the requester.” Weisberg v. U.S. Dep’t of Justice, 745 

F.2d 1476, 1485 (D.C. Cir. 1984).

The “vast majority” of FOIA cases can be decided on motions for summary judgment. 

See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). To prevail on 

summary judgment, the movant agency must prove that no material facts are in dispute, see

Fed. R. Civ. P. 56(a), and that each responsive record has either been produced to the 

requestor or is exempt from disclosure. See Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 

368 (D.C. Cir. 1980). It is the agency’s burden to establish that any withheld information

falls into one of FOIA’s enumerated exemptions. 5 U.S.C. § 552(a)(4)(B); see also Natural 

Res. Def. Council, Inc. v. Nuclear Regulatory Comm’n, 216 F.3d 1180, 1190 (D.C. Cir. 

2000). “The justification for invoking a FOIA exemption is sufficient if it appears logical or 

plausible.” Murphy v. Exec. Office for U.S. Attorneys, 789 F.3d 204, 209 (D.C. Cir. 2015) 

(citation and internal quotation marks omitted).
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III.

The D.C. Circuit instructs:

If an agency’s affidavit describes the justifications for 

withholding the information with specific detail, demonstrates 

that the information withheld logically falls within the claimed 

exemption, and is not contradicted by contrary evidence in the 

record or by evidence of the agency’s bad faith, then summary 

judgment is warranted on the basis of the affidavit alone.

ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). EOUSA’s declaration 

satisfies that standard, and Linder has offered nothing to the contrary. Linder focuses instead 

on his indictment. See Pl.’s Opp’n. at 1. But under the FOIA, “this Court’s remedial powers

are limited to injunctive relief to remedy the improper withholding of agency records . . . not 

. . . to make findings of fact and law as to whether probable cause existed in [plaintiff’s] 

criminal arrest or prosecution.” Sanders v. Obama, 729 F. Supp. 2d 148, 158 (D.D.C. 2010), 

aff’d sub nom. Sanders v. U.S. Dep’t of Justice, No. 10-5273, 2011 WL 1769099 (D.C. Cir. 

Apr. 21, 2011) (citation omitted). 

FOIA Exemption 3 applies to matters that are “specifically exempted from disclosure by 

[another] statute” if that statute “requires that the matters be withheld from the public in such a 

manner as to leave no discretion on the issue” or “establishes particular criteria for withholding 

or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). Rule 6(e) of the 

Federal Rules of Criminal Procedure prohibits government attorneys and other listed “persons” 

from “disclos[ing] a matter occurring before the grand jury,” Fed. R. Crim. P. 6(e)(2)(B), save 

exceptions listed under paragraph (e)(3). While not a statute, the rule “qualifies as one under 

FOIA because the Congress has enacted it into positive law.” Murphy, 789 F.3d at 206 (citations 

omitted). As a result, “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 
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investigation[.]’” Id. (quoting Hodge v. FBI, 703 F.3d 575, 580 (D.C. Cir. 2013)). “A tendency 

need only make a result more likely.” Id. at 210.

Invoking FOIA Exemption 3, EOUSA’s declarant explains that “the Government did not 

request to review the grand jury transcript . . . because doing so would result in the impermissible 

disclosure of the inner workings of the grand jury investigation.” Francis Decl. ¶ 13. See United 

States v. Sells Eng’g, Inc., 463 U.S. 418, 427 (1983) (holding that an excepted “(A)(i) disclosure

[under Crim. Rule 6(e)(3)] is limited to use by those [government] attorneys who conduct the 

criminal matters to which the materials pertain”). She posits that “the grand jury transcript of a 

specific witness would reveal the inner workings and direction of the grand jury by revealing” 

the witness’ knowledge “at the time of his/her testimony during the Government’s grand jury 

investigation[.]” Francis Decl. ¶ 13. This, in turn, “could allow Plaintiff [and the public at large] 

to ascertain what, if any additional steps . . . the Government took during the course of its grand 

jury investigation, which were meant to be protected from disclosure pursuant to Rule 6(e).” Id.; 

see Stonehill v. IRS, 558 F.3d 534, 538–39 (D.C. Cir. 2009) (differentiating FOIA disclosures 

that “must be made available to the public as a whole” from “information disclosed during 

discovery [and] limited to the parties”). The declarant also explains that “the information 

contained in this type of material is inextricably intertwined with secret aspects of the grand jury 

process,” such that the entire record would be protected from disclosure. Francis Decl. ¶ 13. 

Grand jury testimony is quintessentially Exemption 3 material because it is “protected 

from disclosure by Rule 6(e).” Murphy, 789 F.3d at 211; see Moore v. Valder, 65 F.3d 189, 197 

(D.C. Cir. 1995) (“Disclosing grand jury testimony to unauthorized third parties . . . is not a 

discretionary activity nor is it inextricably tied to matters requiring the exercise of discretion.”); 

Boyd v. Exec. Office for U.S. Attorneys, 87 F. Supp. 3d 58, 83 (D.D.C. 2015) (“grand jury 
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testimony is precisely the type of information that [Exemption 3] is designed to protect”). 

Therefore, EOUSA, having properly invoked Exemption 3, is entitled to judgment as a matter of 

law.

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IV.

For the reasons stated above, EOUSA’s motion for summary judgment will be granted.

A separate order accompanies this Memorandum Opinion.

Dated: January 30, 2019 TREVOR N. McFADDEN, U.S.D.J.

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 Because FOIA Exemption 3 protects the entire grand jury transcript testimony from disclosure, 

“segregability is not an issue” here. Sanders, 729 F. Supp. 2d at 157 n.6; see Trans–Pac. Policing 

Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1026 (D.C. Cir. 1999) (placing “affirmative duty” on the 

court “to consider the segregability issue sua sponte”). In any event “courts have affirmed the withholding 

of grand jury transcripts in their entirety” either because they contain exempt and nonexempt information 

that is so intertwined that a redacted version would have “little informational value” or “simply on the basis 

of their status” as grand jury documents that, if disclosed, would reveal the inner workings of the grand 

jury. Thompson v. Exec. Office for U.S. Attorneys, 587 F. Supp. 2d 202, 208 (D.D.C. 2008) (cleaned up).