Labow v. Department of Justice

Cross MOTION for Summary Judgment

D.D.C.February 3, 2017

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JEFFREY LABOW, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant. Civil Action No. 11-1256 (RCL) PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT Pursuant to Fed. R. Civ. Pro. Rule 56, Plaintiff respectfully cross-moves for summary judgment. /s/ Jeffrey L. Light_________ JEFFREY L. LIGHT D.C. BAR #485360 1712 Eye St., NW Suite 915 Washington, DC 20006 (202)277-6213 Jeffrey@LawOfficeOfJeffreyLight.com Counsel for Plaintiff Case 1:11-cv-01256-RCL Document 68 Filed 02/03/17 Page 1 of 14 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JEFFREY LABOW, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant. Civil Action No. 11-1256 (RCL) MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S RENEWED MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT I. Pen Register Statute A. The D.C. Circuit’s decision does not expressly dictate the outcome of the pen register issue in this case, but clearly implies that Plaintiff should prevail. On appeal in the D.C. Circuit, Mr. Labow “argue[d] that the Pen Register Act permits the government to withhold only a sealed pen register order itself. As a result, he contends, the statute does not justify withholding all information appearing in (or associated with) a sealed pen register order, even if the same information is contained in other responsive records beyond the order. In that event, Labow submits, because the Pen Register Act would not call for sealing the other records, Exemption 3 should not shield those other records from FOIA's disclosure mandate.” Labow v. United States DOJ, 831 F.3d 523, 528 (D.C. Cir. 2016). The D.C. Circuit generally agreed with Mr. Labow’s argument. (“As a general matter, we agree with Labow’s reading of the Pen Register Act.”) Id. Construing the Pen Register Act, the D.C. Circuit observed, “By its terms, the statute provides for sealing of a pen register order itself, not sealing of any and all information the order may contain even if appearing in other documents.” Id. Case 1:11-cv-01256-RCL Document 68 Filed 02/03/17 Page 2 of 14 Nevertheless, the D.C. Circuit remanded, rather than outright reversing, because it did not “know whether this case involves withholding of any records beyond a pen register order.”1 Id. The D.C. Circuit instructed that on remand, “[i]f the government withheld information contained exclusively in a pen register order, the information would necessarily fall under the Pen Register Act’s nondisclosure requirements and thus would be shielded under Exemption 3 (assuming the pen register order remains sealed).” Id. at 529. The FBI now concedes that the withheld information is not contained exclusively in a pen register order. (Hardy Decl. ¶ 6) (“The FBI is not protecting a sealed pen register order itself.”) Accordingly, the information withheld does not “necessarily fall under the Pen Register Act’s nondisclosure requirements[.]” Id. at 529. The D.C. Circuit did not give specific instructions on how this Court should rule in the event that the information withheld is found in other responsive documents, but the court expressed skepticism about whether the Pen Register Act would apply under such circumstances. Id. (“[I]f the government withheld information found in other responsive documents on the ground that a pen register order also contained the same information, the potential applicability of the Pen Register Statute (and hence of Exemption 3) would be far less clear.”) The D.C. Circuit further noted that it did “not know whether this case involves the latter situation, or, if so, whether there may be some justification for withholding the information beyond the mere fact that it also appears in a pen register order.” Id. In holding that there may be “some justification for withholding the information beyond the mere fact that it also appears in a pen register order,” the D.C. Circuit implied that “the mere fact that [the information] also appears in a pen register 1 It is not clear why the D.C. Circuit believed that the record before it did not reveal whether the documents were a pen register order or merely contained information also located in a pen register order. The document at issue, which was not a pen register order, was submitted to the court in a supplemental appendix. Case 1:11-cv-01256-RCL Document 68 Filed 02/03/17 Page 3 of 14 order” would not itself be sufficient to justify withholding. Had the D.C. Circuit believed that “the mere fact that [the information] also appears in a pen register order” were a sufficient reason for withholding, it would not have gone on to suggest that there might be some other justification for withholding. In short, while the D.C. Circuit felt constrained to remand rather to reverse outright, the reasoning and tenor of its opinion suggest the outcome this Court should reach when the information being withheld is not exclusively located in the Pen Register order. B. The withheld information does not fall within the Pen Register statute. In Milner v. Dep’t of the Navy, 562 U.S. 562, 569 (2011) the Supreme Court reiterated that in FOIA cases, no less than other types of cases, analysis of a statute must start with its text. The text of the relevant portion of the Pen Register Act provides, “An order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that . . . the order be sealed until otherwise ordered by the court[.]” 18 U.S.C.S. § 3123(d)(1).2 The FBI’s atextual reading of the Pen Register Act adds words that are simply not in the statute. The FBI would rewrite the Pen Register Act to read, “the order and other documents that include the same information be sealed until otherwise ordered by the court[.]” (Def. Mot. S.J. at 6) (“the Pen Register Act should be read to require withholding of both pen register orders and other documents that include the same information[.]”) The Pen Register Act simply does not 2 The D.C. Circuit rejected the FBI’s contention that an additional nondisclosure provision, 18 U.S.C.S. § 3123(d)(2), applies in this case, as that provision does not limit the government’s ability to disclose information. Labow, 831 F.3d at 528 (“Although the statute additionally bars disclosures by certain private parties about the existence of a pen register order in the absence of a court order allowing disclosure, id. § 3123(d)(2), that limitation does not apply to the government.”) Case 1:11-cv-01256-RCL Document 68 Filed 02/03/17 Page 4 of 14 say what the FBI wants it to say, and the Supreme Court’s decision in Milner emphasizes that courts are not to read statutes in a manner inconsistent with their plain text. Moreover, the FBI’s proposed reading of the statute is illogical. While “[e]very court has supervisory power over its own records and files,” Nixon v. Warner Commc’ns, 435 U.S. 589, 598 (1978) (emphasis added), the FBI points to no authority for the proposition that a court has supervisory power over documents outside of its records and files. Nor does the FBI point to any authority that federal courts have the authority to seal executive branch records in the absence of a clear statute vesting them with such power. The Pen Register Act is clearly not such a statute, as it speaks only to a pen register “order,” which is obviously a court record or file, not to the sealing of executive branch records. The FBI’s reading of the statute would also raise grave separation-of-powers concerns, as it would permit federal courts to disregard the plain text of a statute and seal records of a coordinate branch of government. The Court must therefore construe the statute to avoid such separation-of-powers issues. In re Cheney, 406 F.3d 723, 728 (D.C. Cir. 2005) (en banc) (“In light of the severe separation-of-powers problems in applying FACA on the basis that private parties participated in, or influenced, or were otherwise involved with a committee in the Executive Office of the President, we must construe the statute strictly.”) The FBI argues that Mr. Labow’s reading of the statute “would strip the Pen Register Act’s non-disclosure provision of any meaning.” (Def. Mot. S.J. 6.) However, the opposite is true. An unambiguous statute can hardly be said to be stripped of “any meaning” when a court interprets it to mean what it says. The D.C. Circuit has consistently held that statutes are to be given their plain meaning, and a court must “assume that Congress means what it says in a statute.” Anderson v. Carter, 802 F.3d 4 (D.C. Cir. 2015). All of the district court cases cited by the FBI fail to grapple with this issue, and apply the sealing provision of the Pen Register Act with little Case 1:11-cv-01256-RCL Document 68 Filed 02/03/17 Page 5 of 14 analysis. Moreover, these cases were of course decided prior to the D.C. Circuit’s decision in this case, a fact which raises significant doubt about the correctness of those decisions. The FBI’s real complaint here appears to be that a straightforward interpretation of the statute would not be compatible with what it views as the purpose or spirit of the Pen Register Act’s nondisclosure provision. To the extent that this Court finds it appropriate to consider the legislative intent of an unambiguous statute, however, the FBI’s claim fails on the merits. The Pen Register Act was not designed to keep pen register orders secret for secrecy’s sake alone. Rather, the nondisclosure provisions prevent an individual whose electronic device is subject to the order from learning about the installation and use of the device, as such knowledge could allow the individual to frustrate an investigation by no ceasing his or her use of the affected phone or email account. While courts, as a practical matter, rarely go back to unseal the applications and orders, “sealing and non-disclosure of electronic surveillance orders must be neither permanent nor, what amounts to the same thing, indefinite.” In re Sealing & Non- Disclosure of Pen/Trap/2703(d) Orders, 562 F. Supp. 2d 876, 895 (S.D. Tex. 2008). As such, this Court is presently in the process of unsealing large numbers of pen register orders as to which there is no longer an active investigation. See In the Matter of the Application of Jason Leopold to Unseal Certain Electronic Surveillance Applications and Orders, Case No. 1:13-mc- 712 (BAH). In the present case, the document referring to the pen register dates back to 2011, and there are no longer any pending or prospective law enforcement proceedings. (Appellee Br. 16) (“[T]he FBI has Determined That Exemption 7(A) No Longer Applies[.]”) Accordingly, maintaining the secrecy of the information contained in the pen register order does not advance the purpose or spirit of the Pen Register Act. In other cases, where there is an ongoing Case 1:11-cv-01256-RCL Document 68 Filed 02/03/17 Page 6 of 14 investigation that would be threatened by revealing the identity and/or phone number of the individual, the FBI would likely be able to successfully assert Exemption 7(A). Thus, the Court need not apply a judicial gloss to the Pen Register Act in order to prevent an unanticipated harm from occurring. Finally, even if the Court finds that the name and phone number of the individual can be properly withheld pursuant to Exemption 3, the FBI still may not invoke that exemption as to the results of the pen register. The FBI explains that “the sentence at issue here reveals pen register results obtained on a specific date, as well as the name of another third party individual potentially using the same number.” (Hardy Decl. ¶ 6.) The Pen Register Act has no possible applicability to information that is not even contained in an order. The issue of whether information not contained in a pen register order can be withheld under the Pen Register Act was not specifically addressed by the D.C. Circuit or this Court in the present case. The reason for the lack of a decision on the issue, however, is that the FBI has seen fit to litigate this case for over five years without once informing Mr. Labow, the D.C. Circuit, or this Court that the FBI was withholding the results of the pen register. [ECF dkt: 32-2] (“Accordingly, the FBI properly applied Exemption 3 to withhold the identities and phone numbers of the individuals subject to pen registers in this case[.]”)While the FBI’s gamesmanship may have allowed it to avoid an unfavorable ruling on the issue from the D.C. Circuit, the overall thrust of the D.C. Circuit’s opinion on the Pen Register Act issue makes clear that information that is not even contained in a pen register order would not be covered by the Pen Register Act. Case 1:11-cv-01256-RCL Document 68 Filed 02/03/17 Page 7 of 14 C. The FBI has waived its ability to assert Exemption 7(E). In the initial district court proceedings, the FBI had an opportunity to assert Exemption 7(E) with respect to the withheld pen register material. It did not do so. On appeal to the D.C. Circuit, there was a small number of pages at issue, but the FBI did not ask for a remand to assert Exemption 7(E). Over five years into this litigation, the FBI invokes Exemption 7(E) for the first time. The FBI has offered no justification whatsoever for this delay, and the Court should not tolerate this attempt to gain a tactical advantage in litigation. In Maydak v. United States DOJ, 218 F.3d 760, 764-65 (D.C. Cir. 2000), the D.C. Circuit observed that it had “plainly and repeatedly told the government that, as a general rule, it must assert all exemptions at the same time, in the original district court proceedings.” There are two exceptions to the general rule, but as in Maydak itself, neither are applicable here: “We have recognized two exceptions for unusual situations, largely beyond the government’s control: specifically, extraordinary circumstances where, from pure human error, the government failed to invoke the correct exemption and will have to release information compromising national security or sensitive, personal, private information unless the court allows it to make an untimely exemption claim; and where a substantial change in the factual context of the case or an interim development in the applicable law forces the government to invoke an exemption after the original district court proceedings have concluded. See id. (relying on Jordan, 591 F.2d at 780). As to the first of these, DOJ does not claim that human error was the cause of its failure to assert other FOIA exemptions; and as to the second, the only change in this case is the simple resolution of other litigation, hardly an unforeseeable difference.” Id. 767-68. Ultimately, the court in Maydak refused DOJ’s request to remand the case in order to allow it to assert new exemptions. Although Maydak involved the government’s attempt to raise new issues on appeal, rather than on remand, the D.C. Circuit’s rule is the same as to both. Wash. Post Co. v. United States Dep’t of Health & Human Servs., 795 F.2d 205, 208 (D.C. Cir. 1986) (“It is common ground that the government ordinarily must raise all its claims of exemption in Case 1:11-cv-01256-RCL Document 68 Filed 02/03/17 Page 8 of 14 the original proceedings in district court, and may not thereafter assert new claims of exemption, either on appeal or on remand following appeal”) (emphasis added). In this case, the FBI has not claimed that the late assertion of Exemption 7(E) is the result of human error. Nor does it argue that there was a substantial change in the facts or law which forced the government to invoke the exemption late. Indeed, the FBI provides no explanation whatsoever for its belated assertion. Instead, the FBI argues that “[b]y raising this argument in its Renewed Motion for Summary Judgment, the FBI is affording this Court an opportunity to ‘rule on the issue,’ Maydak, 218 F.3d at 765, and also affording Labow an opportunity to respond.” (Def. Mot. S.J. 12). However, the fact that Plaintiff is able to file an opposition to the renewed motion for summary judgment does not negate the need for the Court to enforce the waiver rule. As the D.C. Circuit explained: “First, the interests of judicial finality and economy, have special force in the FOIA context, because the statutory goals — efficient, prompt, and full disclosure of information, — can be frustrated by agency actions that operate to delay the ultimate resolution of the disclosure request. Furthermore, fairness to parties seeking disclosure ordinarily requires that they be accorded a full and concentrated opportunity to challenge and test comprehensively the agency’s evidence regarding all claimed exemptions. We will not allow an agency to play cat and mouse by withholding its most powerful cannon until after the District Court has decided the case and then springing it on surprised opponents and the judge.” Senate of P.R. ex rel. Judiciary Comm. v. United States DOJ, 823 F.2d 574, 580 (D.C. Cir. 1987) (internal quotation marks and citations omitted, emphasis added). Thus, the waiver rule is not simply concerned with the ability of a plaintiff to test the government’s argument at some time or another over the course of several years. Rather it is intended to afford the opportunity to “test comprehensively” the government’s evidence. In order Case 1:11-cv-01256-RCL Document 68 Filed 02/03/17 Page 9 of 14 to speed the resolution of this case and deter future dilatory tactics, this Court should hold that the government waived its right to assert Exemption 7(E). D. The FBI’s assertion of Exemption 7(E) fails on the merits Even if the Court permits the FBI to assert Exemption 7(E) at this late stage, its arguments still fail on the merits. The FBI’s conclusory affidavit fails to establish its entitlement to withholding, and the information being withheld is clearly not protected by Exemption 7(E). The FBI concedes that a “pen register is a known technique[.]” (Hardy Decl. ¶ 10.) The FBI nevertheless asserts that Exemption 7(E) is applicable because “the manner in which the information obtained via a pen register is analyzed and/or exploited is in it [sic] of itself a law enforcement technique.” (Hardy Decl. ¶ 10.) The information being withheld here, however, includes an individual’s name and phone number. (Hardy Decl. ¶ 9.) The name of an individual and the individual’s phone number are not a law enforcement techniques, nor would their disclosure reveal law enforcement techniques. A similar argument was made by the FBI and rejected by the Ninth Circuit in Rosenfeld. There, the FBI conceded that the use of a pretext phone call was a known technique but asserted that the use of a particular individual’s name as part a pretext phone call was not a known technique. The Ninth Circuit held: “We are not persuaded by the government’s argument that the technique at issue is more precise, namely, the use of the identity of a particular individual, Mario Savio, as the pretext. This argument proves too much. If we were to follow such reasoning, the government could withhold information under Exemption 7(E) under any circumstances, no matter how obvious the investigative practice at issue, simply by saying that the ‘investigative technique’ at issue is not the practice but the application of the practice to the particular facts underlying that FOIA request.” Rosenfeld v. United States Dep’t of Justice, 57 F.3d 803, 815 (9th Cir. 1995). This Court should follow the Ninth Circuit’s sound rationale. Case 1:11-cv-01256-RCL Document 68 Filed 02/03/17 Page 10 of 14 With respect to the other information contained in the withheld sentence, the “pen register results obtained on a specific date,” (Hardy Decl. ¶ 6) the FBI has not demonstrated that the results would reveal a technique generally unknown to the public. The information that can be collected with a pen register device is set forth in federal statutes, as well as in pen register orders available to the public on PACER. For example, 18 U.S.C.S. § 3127(3) describes a “pen register” as “a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted . . .” Further, a typical pen register order for a telephone describes the information to be collected as “numbers dialed to or pulsed from the subject cellular telephone number” and “the date and time of such dialings or pulsing.” (Ex. 1.) Thus, it is no mystery what results will be generated by the pen register. The FBI therefore cannot demonstrate that the results of a pen register are unknown to the public or could reasonably be expected to risk circumvention of the law if disclosed.3 II. Grand Jury material A. The D.C. Circuit’s decision directs this Court to consider whether the documents at issue would reveal the workings of the grand jury. In the D.C. Circuit, Mr. Labow’s challenge to the withholding of grand jury-related materials was limited solely to records subpoenaed by a grand jury. Labow, 831 F.2d at 529. The D.C. Circuit held that in deciding whether this material should be released, “the ‘touchstone’ is 3 The FBI contends that there is “categorical” protection for “techniques and procedures,” apparently suggesting there is no need for it to show a risk of circumvention of the law. (Def. Mot. S.J. 11.) That is not the law in this jurisdiction. Pub. Emples. for Envtl. Responsibilty v. United States Section, Int’l Boundary & Water Comm’n, 740 F.3d 195, 204 n.4 (D.C. Cir. 2014) (“This Court has applied the ‘risk circumvention of the law’ requirement both to records containing guidelines and to records containing techniques and procedures.”) Case 1:11-cv-01256-RCL Document 68 Filed 02/03/17 Page 11 of 14 whether the information sought would reveal something about the grand jury’s identity, investigation, or deliberation.” Id. Because it was unclear from the record whether “the records would reveal anything about the investigation,” the court remanded. Id. The D.C. Circuit instructed this Court to consider on remand “whether the release of the documents subpoenaed by the grand jury would reveal something about the grand jury’s investigation. . . . The district court . . . should consider whether the documents would have revealed something about the workings of the grand jury had they been released with other requested documents.” Id. at 530 B. The withheld information is not covered by Exemption 3. The FBI has withheld 35 pages based solely on Exemption 3 in conjunction with Fed. R. Crim. Pro. 6(e). (Hardy Decl. ¶ 14.) These pages purportedly “contain information about the names of recipients of Federal Grand Jury subpoenas; information that identifies specific records subpoenaed by a Federal Grand Jury; and copies of specific records provided to a Federal Grand Jury in response to Federal Grand Jury subpoenas.” (Hardy Decl. ¶ 14.) At issue here are only those pages which are records provided to a grand jury in response to a subpoena. Labow, 831 F.3d at 529. The FBI does not contend that these 35 pages are stamped with the words “Grand Jury” or otherwise contain any reference to a grand jury on their face. Rather, the FBI’s theory for withholding these 35 pages is that other pages contain the words “Grand Jury” or some reference to a grand jury. (Hardy Decl. ¶ 14.) The FBI argues that these references to a grand jury on “withheld and/or immediately preceding pages” would reveal a direct connection with the grand jury. (Hardy Decl. ¶ 14.) Case 1:11-cv-01256-RCL Document 68 Filed 02/03/17 Page 12 of 14 The FBI’s argument improperly attempts to link documents which reference a grand jury (and therefore can be properly withheld) with those documents which do not reference a grand jury (and therefore cannot be properly withheld). The Court should reject this bootstrapping approach because it is not plausible that a document with no reference on its face to a grand jury would reveal the workings of a grand jury if it had been released to Plaintiff with other documents. The FBI appears to be arguing that Plaintiff could infer that because Labow-776 is a grand jury subpoena, the immediately subsequent documents relate to that grand jury subpoena. (Hardy Decl. ¶ 14.) But Mr. Labow would never have known that Labow-776 is a grand jury subpoena had the FBI not just announced it. Given that the FBI withheld hundreds of pages pursuant to Exemption 3 / Rule 6(e), including documents which are not grand jury subpoenas, Mr. Labow would never have known that Labow-776 was a grand jury subpoena were it not for Mr. Hardy’s declaration. The FBI also contends that the way in which the FBI stores its records in grand jury sub- files would reveal that subsequent pages are grand jury-related material. But to the extent that there is a reference to a grand jury on a withheld page, the FBI can redact that information and/or withhold the page, as appropriate. If the subsequent pages are released, Plaintiff would then never know that these pages have any relation to a grand jury. The FBI’s argument boils down to the assertion that if the subpoenaed material was initially released to Mr. Labow, he would be able to speculate about whether those pages relate to a grand jury. But a plaintiff can always speculate that a document relates to a grand jury. The test that the D.C. Circuit set forth is not whether Mr. Labow could make an informed guess that the subpoenaed records, if released, were connected to a grand jury. Rather, the documents must Case 1:11-cv-01256-RCL Document 68 Filed 02/03/17 Page 13 of 14 “necessarily evince their connection to a grand jury,” (emphasis added) and even then, can only be withheld if the connection “could not be dealt with through redactions.” Labow, 831 F.3d at 530. The connection between the information on the face of the documents and the workings of a grand jury is simply too tenuous to support an Exemption 3 claim. III. Conclusion For the foregoing reasons, Mr. Labow respectfully requests that the Court deny Defendant’s motion for summary judgment, grant his cross-motion for summary judgment, and order the release of the improperly withheld records. /s/ Jeffrey L. Light_________ JEFFREY L. LIGHT D.C. BAR #485360 1712 Eye St., NW Suite 915 Washington, DC 20006 (202)277-6213 Jeffrey@LawOfficeOfJeffreyLight.com Counsel for Plaintiff Case 1:11-cv-01256-RCL Document 68 Filed 02/03/17 Page 14 of 14 Case 1:13-mc-00712-BAH Document 26-1 Filed 12/09/16 Page 1 of 11Case 1:11-cv- 1256-RCL 68 il 0 3 7 8 Case 1:13-mc-00712-BAH Document 26-1 Filed 12/09/16 Page 2 of 11Case 1:11-cv- 1256-RCL 68 il 0 3 7 8 Case 1:13-mc-00712-BAH Document 26-1 Filed 12/09/16 Page 3 of 11Case 1:11-cv- 1256-RCL 68 il 0 3 7 8 Case 1:13-mc-00712-BAH Document 26-1 Filed 12/09/16 Page 4 of 11Case 1:11-cv- 1256-RCL 68 il 0 3 7 8 Case 1:13-mc-00712-BAH Document 26-1 Filed 12/09/16 Page 5 of 11Case 1:11-cv- 1256-RCL 68 il 0 3 7 8 Case 1:13-mc-00712-BAH Document 26-1 Filed 12/09/16 Page 6 of 11Case 1:11-cv- 1256-RCL 68 il 0 3 7 8 Case 1:13-mc-00712-BAH Document 26-1 Filed 12/09/16 Page 7 of 11Case 1:11-cv- 1256-RCL 68 il 0 3 7 8 Case 1:13-mc-00712-BAH Document 26-1 Filed 12/09/16 Page 8 of 11Case 1:11-cv- 1256-RCL 68 il 0 3 7 8 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JEFFREY LABOW, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant. Civil Action No. 11-1256 (RCL) PLAINTIFF’S STATEMENT OF MATERIAL FACTS NOT IN GENUINE DISPUTE 1. The use of a pen register is a law enforcement technique generally known to the public. (Hardy Decl. ¶ 10.) 2. A typical pen register order for a telephone describes the information to be collected as “numbers dialed to or pulsed from the subject cellular telephone number” and “the date and time of such dialings or pulsing.” (Ex. 1.) 3. The FBI is not contending that any of the 35 pages being withheld exclusively pursuant to Exemption 3 / Rule 6(e) are marked with or otherwise reference a grand jury on their face. (Hardy Decl. ¶ 14.) /s/ Jeffrey L. Light_________ Case 1:11-cv-01256-RCL Document 68-2 Filed 02/03/17 Page 1 of 1 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JEFFREY LABOW, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant. Civil Action No. 11-1256 (RCL) ORDER It is hereby ORDERED that Defendant’s Motion for Summary Judgment is DENIED. It is further ORDERED that Plaintiff’s Cross-Motion for Summary Judgment is GRANTED. Defendant shall produce the documents at issue to Plaintiff forthwith. __________________________ Hon. Royce C. Lamberth, U.S. District Judge Date: _________________ Case 1:11-cv-01256-RCL Document 68-3 Filed 02/03/17 Page 1 of 1