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Case TitlePUBIEN v. EXECUTIVE OFFICER FOR UNITED STATES ATTORNEYS
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2018cv00172
Date Filed2018-01-26
Date Closed2018-11-13
JudgeJudge James E. Boasberg
PlaintiffMICKEY PUBIEN
DefendantEXECUTIVE OFFICER FOR UNITED STATES ATTORNEYS
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Opinion/Order [18]
FOIA Project Annotation: Judge James Boasberg has ruled that EOUSA properly responded to Mickey Pubien's request for the dates on which a grand jury was impaneled by informing him that it could find no records. Pubien filed a request in 2016 for records concerning the date on which a grand jury in the Southern District of Florida was impaneled and the date on which the grand jury expired. The agency told Pubien that the Office of the U.S. Attorney for the Southern District of Florida no longer had that information because it had been destroyed pursuant to its records retention schedule. However, the court clerk was able to furnish the dates on which the grand jury was impaneled and expired. That record was disclosed to Pubien with redactions under Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records). Pubien then submitted a second request asking for all the dates on which the grand jury was in session. Once again, the agency found that it had no responsive records beyond the record provided by the court clerk. The clerk's record was disclosed again with the same redactions. Pubien filed suit, arguing that the search was inadequate and that the exemptions were improper. Pubien argued the U.S. Attorney's Office for the Southern District of Florida had failed to ask other personnel who might have knowledge of the dates. But Boasberg indicated that "the U.S. Attorney's Office does not assert in this case that it never had such records. Rather, it represents only that any of 'the records that might have related [to Pubien's request]. . .have been destroyed in accordance with the [office's] records retention schedule.' The Government is not required to produce documents that no longer exist or to retain indefinitely the records it has." Pubien also faulted the agency for failing to address the more specific dates in his second request. Here, Boasberg pointed out that "that the Memo does not contain the information Plaintiff requested is true, but that is because more specific records do not exist. EOUSA is clear, moreover, that it did undertake an additional, renewed search in response to Plaintiff's [second] request." Boasberg rejected the agency's claim that Exemption 7(C) applied. He noted that "it strains credulity to suggest that the information compiled about grand jury dates over a decade after it was impaneled and discharged " and in response to a FOIA request " was assembled for law enforcement purposes. Indeed, the Memo was created only for FOIA purposes." However, he found that Exemption 6 applied because the privacy interests of the individuals outweighed any public interest in disclosure. Pubien argued that because he had found a document online confirming the existence of the grand jury the privacy exemptions did not apply. Calling this a "non sequitur," Boasberg explained that "that some material related to a grand jury is public does not imply that the names of the staff members who exchanged the Memo are also public."
Issues: Adequacy - Search
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2018-01-26Initiating Pleading & IFP Application Received on 1/16/18. (zsth) (Entered: 01/30/2018)
2018-01-261COMPLAINT against EXECUTIVE OFFICER FOR UNITED STATES ATTORNEYS filed by MICKEY PUBIEN. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(zsth) (Entered: 01/30/2018)
2018-01-262MOTION for Leave to Proceed in forma pauperis by MICKEY PUBIEN (Attachments: # 1 Attachment)(zsth) (Entered: 01/30/2018)
2018-04-093ORDER assessing partial filing fee and granting 2 Plaintiff's Motion for Leave to Proceed in forma pauperis (see written order for details). Signed by Judge Emmet G. Sullivan on 4/9/18.(ah) (Entered: 04/09/2018)
2018-04-10Case Reassigned to Judge James E. Boasberg. Unassigned is no longer assigned to the case. (zsth) (Entered: 04/10/2018)
2018-04-134SUMMONS (3) Issued as to EXECUTIVE OFFICER FOR UNITED STATES ATTORNEYS, U.S. Attorney and U.S. Attorney General. (jd) (Entered: 04/18/2018)
2018-04-27MINUTE ORDER: The Court ORDERS that the USMS effect service on Defendant EOUSA. So ORDERED by Judge James E. Boasberg on 4/27/2018. (lcjeb3) (Entered: 04/27/2018)
2018-05-165RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. EXECUTIVE OFFICER FOR UNITED STATES ATTORNEYS served on 5/16/2018, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/15/2018. ( Answer due for ALL FEDERAL DEFENDANTS by 6/14/2018.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 5/16/18. (ztd) (Entered: 05/17/2018)
2018-06-146ANSWER to 1 Complaint by EXECUTIVE OFFICER FOR UNITED STATES ATTORNEYS.(Morgan, Sherri) (Entered: 06/14/2018)
2018-06-15MINUTE ORDER: The Court ORDERS that the Government shall submit a proposed briefing schedule by June 28, 2018. So ORDERED by Judge James E. Boasberg on 6/15/2018. (lcjeb3) (Entered: 06/15/2018)
2018-06-15Set/Reset Deadlines: Proposed Briefing Schedule due by 6/28/2018. (znbn) (Entered: 06/15/2018)
2018-06-207PROPOSED BRIEFING SCHEDULE by EXECUTIVE OFFICER FOR UNITED STATES ATTORNEYS. (Morgan, Sherri) (Entered: 06/20/2018)
2018-06-20MINUTE ORDER: Per the Government's 7 proposal, the Court ORDERS that: (1) Defendant shall file its Motion for Summary Judgment on or before August 31, 2018; Plaintiff shall file his Opposition to Defendant's Motion for Summary Judgment on or before October 5, 2018; and (3) Defendant shall reply on or before November 2, 2018. So ORDERED by Judge James E. Boasberg on 6/20/2018. (lcjeb3) (Entered: 06/20/2018)
2018-06-21Set/Reset Deadlines: Summary Judgment motions due by 8/31/2018. Response to Motion for Summary Judgment due by 10/5/2018. Reply to Motion for Summary Judgment due by 11/2/2018. (lsj) (Entered: 06/21/2018)
2018-07-028RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 5/16/18., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. (ztd) (Entered: 07/10/2018)
2018-08-319MOTION for Summary Judgment & Memorandum in Support by EXECUTIVE OFFICER FOR UNITED STATES ATTORNEYS (Attachments: # 1 Statement of Facts, # 2 Declaration, # 3 Exhibit Exh. A: 2016 FOIA Request, # 4 Exhibit Exh.B: Acknowledgement of 2016 Request, # 5 Exhibit Exh. C: Amin. Appeals of 2016 Request, # 6 Exhibit Exh. D: Appeal Decision & Release, # 7 Exhibit Exh. E: 2017 FOIA Request, # 8 Exhibit Exh. F: Agency's Acknowledgement of 2017 Request, # 9 Exhibit Exh. G: Agency's Response to 2017 Request & Re-release)(Morgan, Sherri) (Entered: 08/31/2018)
2018-08-3110MOTION to Amend/Correct 6 Answer to Complaint by EXECUTIVE OFFICER FOR UNITED STATES ATTORNEYS (Attachments: # 1 Exhibit Amended Answer)(Morgan, Sherri) (Entered: 08/31/2018)
2018-08-3111CERTIFICATE OF SERVICE by EXECUTIVE OFFICER FOR UNITED STATES ATTORNEYS re 9 MOTION for Summary Judgment & Memorandum in Support & Declaration & Stmt. of Facts & Exhibits . (Morgan, Sherri) (Entered: 08/31/2018)
2018-08-3112ORDER DIRECTING Plaintiff to oppose or otherwise respond to Defendant 9 Executive Office for United States Attorneys' Motion for Summary Judgment no later than October 5, 2018. Signed by Judge James E. Boasberg on 8/31/2018. (lcjeb3) (Entered: 08/31/2018)
2018-08-31Set/Reset Deadlines: Responses due by 10/5/2018. (znbn) (Entered: 09/06/2018)
2018-09-2813NOTICE OF SUBSTITUTION OF COUNSEL by Rhonda Lisa Campbell on behalf of EXECUTIVE OFFICER FOR UNITED STATES ATTORNEYS Substituting for attorney Sherri L. Morgan (Campbell, Rhonda) (Entered: 09/28/2018)
2018-10-0514Memorandum in opposition to re 9 MOTION for Summary Judgment & Memorandum in Support filed by MICKEY PUBIEN. (Attachments: # 1 Exhibits) (tth) (Entered: 10/12/2018)
2018-10-15MINUTE ORDER: The Court ORDERS that Defendant's 10 Motion to Amend Answer is GRANTED as unopposed, and its [10-1] Amended Answer is deemed FILED. So ORDERED by Judge James E. Boasberg on 10/15/2018. (lcjeb3) (Entered: 10/15/2018)
2018-10-1515AMENDED ANSWER to 1 Complaint by EXECUTIVE OFFICER FOR UNITED STATES ATTORNEYS. (tth) (Entered: 10/17/2018)
2018-11-0216REPLY to opposition to motion re 9 MOTION for Summary Judgment & Memorandum in Support filed by EXECUTIVE OFFICER FOR UNITED STATES ATTORNEYS. (Attachments: # 1 Declaration)(Campbell, Rhonda) (Entered: 11/02/2018)
2018-11-1317ORDER GRANTING 9 Motion for Summary Judgment. Signed by Judge James E. Boasberg on 11/13/2018. (lcjeb1) (Entered: 11/13/2018)
2018-11-1318MEMORANDUM OPINION re 17 Order on Motion for Summary Judgment. Signed by Judge James E. Boasberg on 11/13/2018. (lcjeb1) (Entered: 11/13/2018)
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by FOIA Project Staff
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