Q. If I am trying to confirm the empanelment of a federal grand jury on a particular matter, would I be able to FOIA the DOJ or the FBI for records related to the case? Presumably it would be denied explicitly because criminal investigations are exempt from FOIA scrutiny. But I’m thinking that the denial letter might therefore, in turn, confirm the criminal investigation in the first place? Am I misunderstanding anything about this process?
A. You can try, but the statute allows the government to thwart requests like yours. For example, If the very fact of a criminal investigation's existence is unknown to the target of the investigation, and disclosing the existence of the investigation could reasonably be expected to interfere with enforcement proceedings, the government is authorized to inform the requester that a search yielded no responsive records. See 5 U.S.C. § 552(c)(1). Alternatively, if your request seeks records about third parties, the government can simply refuse to confirm or deny the existence of records on privacy grounds without conducting a search.