“Plaintiff must point to ‘specific information in the public domain that appears to duplicate that being withheld.’”
How later courts described this case
- “Plaintiff must point to ‘specific information in the public domain that appears to duplicate that being withheld.’”
- “[I]t is not enough to copy and paste the same boilerplate language each time [an] exemption is invoked[.]”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
CHARLES NEUMAN, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-cv-0719 (KBJ)
)
UNITED STATES OF AMERICA, et al., )
)
)
Defendants. )
)
MEMORANDUM OPINION
Pro se Plaintiff Charles Neuman (“Plaintiff” or “Neuman”) has brought the
instant action against the United States, the Department of Justice, and U.S.
Immigration and Customs Enforcement (collectively “Defendants”) under the Freedom
of Information Act (FOIA), 5 U.S.C. § 552 (2012), to pursue records related to his 2009
criminal conviction for a series of crimes arising out of the operation of a counterfeiting
ring. Defendants provided certain documents to Neuman in response to a FOIA request,
but some of the pages were heavily redacted. Neuman’s lawsuit alleges that Defendants
have wrongfully withheld information contained in twenty-five of the responsive
documents.
Before this Court at present is Defendants’ motion for summary judgment, which
maintains that all responsive documents have been released to Plaintiff and that
Defendants were entitled to withhold portions of the documents under FOIA
Exemptions 6, 7(C), 7(E), and 7(F), and also under Privacy Act Exemption (j)(2). In
1
his opposition, Plaintiff responds only to Defendants’ invocation of Exemption s 7(C)
and 7(E), leaving this Court to conclude that Plaintiff has conceded the applicability of
FOIA Exemptions 6 and 7(F) and Privacy Act Exemption (j)(2). Moreover, while this
Court is persuaded that FOIA Exemption 7(E) has been properly applied, this Court is
not in a position to determine the validity of Defendant’s invocation of Exemption
7(C)—the paucity of the record and the unsatisfactory nature of Defendants’ Vaughn
index render it impossible to determine whether that exemption is appropriate.
Consequently, Defendants’ motion for summary judgment will be GRANTED IN
PART and DENIED IN PART, and this Court will order Defendants to submit for in
camera review certain documents—in both redacted and unredacted form—as well as an
updated Vaughn index that more precisely lays out the reason behind each redaction.
As the separate order accompanying this memorandum opinion establishes, once
Defendants have satisfied these threshold requirements, they will be permitted to
resubmit their motion for summary judgment with respect to the withholdings that are
based on Exemption 7(C).
I. BACKGROUND
The Freedom of Information Act request underlying the present litigation stems
from Plaintiff’s conviction in January of 2009 of a host of crimes related to the
operation of a counterfeit ring, including the crime of being a felon-in-possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1). (Compl., ECF No. 1, at 6.) 1 On May
21, 2012, Plaintiff filed a FOIA request with U.S. Immigration and Customs
Enforcement (“ICE”), which was the investigating agency behind Plaintiff’s 2009
1
Page numbers throughout this Opinion refer to those that the Court’s electronic filing system assigns.
2
convictions. (Id. ¶ 6.) Plaintiff requested “all information in [ICE’s] possession that
involves [ICE’s] investigation of me for any and all criminal conduct [,]” as well as all
information in the agency’s possession relating to the particular case that resulted in
Plaintiff’s 2009 conviction. (Id. ¶ 7.)
Plaintiff’s belief that certain potentially exculpatory evidence was unlawfully
withheld during his trial in 2009 apparently was the motivation behind this FOIA
request. In particular, Plaintiff contends that a witness at his trial had provided
information to ICE officials during the pre-trial investigation that suggested Plaintiff
could not have been in possession of the gun that led to his conviction of being a felon-
in-possession of a firearm (id. ¶¶ 12-13), and that this exculpatory information was not
provided to Plaintiff prior to trial, in violation of his statutory and constitutional rights
(id. ¶ 15). 2 Plaintiff has sought to utilize the FOIA process as a means of unearthing
that allegedly exculpatory evidence.
On October 15, 2012, ICE released 80 documents responsive to Plaintiff’s FOIA
request, totaling 207 pages of responsive material. (FOIA Response Letter (Oct. 15,
2012), Ex. 4 to Defs.’ Mot. for Summ. J., ECF No. 17-1, at 72.) Every page was
partially redacted. (Id.) ICE claimed that these redactions were based on four statutory
disclosure exemptions: FOIA’s Exemptions 6, 7(C), and 7(E) and the Privacy Act’s
Exemption (j)(2). (Id. at 72-73.) On November 5, 2012, Plaintiff filed an
administrative appeal, challenging the heavy redaction of twenty-five of the released
documents, but ICE determined on review that those documents were properly redacted.
(FOIA Response Letter (Jan. 8, 2013), Ex. 7 to Defs.’ Mot. for Summ. J., ECF No. 17-1
2
Plaintiff argues that the failure to turn over this evidence constitutes a violation of the Jencks Act, 18
U.S.C. § 3500 (2006), and Brady v. Maryland, 373 U.S. 83 (1963). The merits of this argument is not
at issue in the instant case.
3
at 81-82). 3 Thereafter, Plaintiff filed the instant FOIA lawsuit, disputing the validity of
ICE’s redactions. 4
On December 16, 2013, Defendants filed a motion for summary judgment.
(Defs.’ Mot. for Summ. J. (“Defs.’ Mot.”), ECF No. 17.) This motion includes an
affidavit and various exhibits that are intended to clarify the reasoning behind the
disputed redactions. First, Defendants argue that the disclosure provisions of the
Privacy Act do not apply to the particular records at issue her e and thus full disclosure
is not required. (Defs.’ Mem. in Supp. of Mot. for Summ. J. (“Defs.’ Mem.”), ECF No.
17, at 21-22.) Second, Defendants assert that FOIA Exemptions 6 and 7(C) are
applicable because “the substantial privacy interests of law enfo rcement agents and
other individuals” outweigh “the non-existent public interest.” (Id. at 29.) Third,
Defendants assert that they properly withheld various “database codes, case numbers,
and numeric references” under Exemption 7(E). (Id. at 30.) Finally, Defendants claim
that any information identifying third parties falls under Exemption 7(F) because such
information “could put them and their families at great risk of physical danger.” ( Id. at
32.)
Plaintiff submitted his opposition to Defendants’ summary judgment motion on
February 10, 2014, arguing that there remains a genuine dispute regarding whether
Defendants properly invoked FOIA Exemptions 7(C) and 7(E). (Pl.’s Opp’n to Defs.’
Mot. (“Pl.’s Opp’n”), ECF No. 19, at 1.) Defendants’ summary judgment motion has
3
According to the descriptions that appear in the complaint and in Defendants’ Vaughn index, the
twenty-five documents at issue in this case are numbered 38, 41, 43, 49 -54, and 65-80. (See Compl.
¶ 9; Vaughn Index, Ex. 1 to Defs.’ Mot. for Summ. J., ECF No. 17-1, at 21-63.)
4
Shortly after this action was filed, ICE reviewed these documents a third time and decided that more
of the content could be released. (Defs.’ Statement of Material Facts, ECF No. 17 ¶¶ 17-18). However,
the agency maintains that the remaining redactions are permitted under established exemptions to
FOIA.
4
been fully briefed, and is now ripe for this Court’s review.
II. LEGAL STANDARDS
A. The FOIA And Exemptions 6 And 7
The FOIA “was enacted to facilitate public access to Government documents” in
order to “pierce the veil of administrative secrecy and to open agency action to the light
of public scrutiny.” Dep’t of State v. Ray, 502 U.S. 164, 173 (1991) (internal quotation
marks and citation omitted). Pursuant to the text of the FOIA, “each agency, upon any
request for records which (i) reasonably describes such records and (ii) is made in
accordance with published rules stating the time, place, fees (if any), and procedures to
be followed, shall make the records promptly available to any person.” See 5 U.S.C.
§ 552(a)(3)(A). Notably, despite the clear “prodisclosure purpose” of the statute, Nat’l
Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004), the FOIA also
contains nine exemptions—i.e., specified circumstances under which disclosure is not
required. 5 U.S.C. § 552(b). These exemptions “must be narrowly construed.” Dep't
of Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). Moreover, “the
strong presumption in favor of disclosure places the burden on the agency to justify the
withholding of any requested documents.” Ray, 502 U.S. at 173.
Two FOIA Exemptions are at issue here: Exemptions 6 and 7. Exemption 6
permits the withholding of “personnel and medical files and similar files the disclosure
of which would constitute a clearly unwarranted invasion of personal privacy[.]” 5
U.S.C. § 552(b)(6). Exemption 7 covers a broad array of materials relating to “records
or information compiled for law enforcement purposes[.]” Id. § 552(b)(7). This is not
a blanket exemption; instead, law enforcement materials are only exempted from
5
disclosure if they meet one of six further requirements.
Two of those further requirements—labeled 7(C) and 7(E)—relate to the
redactions at issue in this case. Exemption 7(C) covers information that “could
reasonably be expected to constitute an unwarranted invasion of personal privacy [.]”
Id. § 552(b)(7)(C). In order to determine whether information was validly withheld
under Exemption 7(C), the Court must balance the privacy interests of the affected
party with the public’s interest in the information. See Favish, 541 U.S. at 172 (“The
statutory direction that the information not be released if the invasi on of personal
privacy could reasonably be expected to be unwarranted requires the courts to balance
the competing interests in privacy and disclosure.”); accord Schrecker v. DOJ, 254 F.3d
162, 166 (D.C. Cir. 2001). 5 Exemption 7(E) covers information that “would disclose
techniques and procedures for law enforcement investigations or prosecutions, or would
disclose guidelines for law enforcement investigations or prosecutions if such
disclosure could reasonably be expected to risk circumvention of the law[.]” 5 U.S.C.
§ 552(b)(7)(E).
B. Summary Judgment In FOIA Cases
Federal Rule of Civil Procedure 56 provides that summary judgment shall be
granted where “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” The moving party bears the burden of proving
that they are entitled to summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986). In the FOIA context, a district court reviewing a motion for summary
5
“[T]he standard for evaluating a threatened invasion of privacy interests resulting from the disclosure
of records compiled for law enforcement purposes is somewhat broader than t he standard applicable to
personnel, medical, and similar files.” DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749,
756 (1989). As such, any information that satisfies Exemption 7(C)’s standard is also likely to satisfy
the standard for Exemption 6.
6
judgment conducts a de novo review of the record, and the responding federal agency
bears the burden of proving that it has complied with its obligations under the FOIA.
See 5 U.S.C. § 552(a)(4)(B); see also In Def. of Animals v. Nat'l Insts. of Health, 543 F.
Supp. 2d 83, 92–93 (D.D.C. 2008). Because the court must analyze all underlying facts
and inferences in the light most favorable to the FOIA requester, see Willis v. DOJ, 581
F. Supp. 2d 57, 65 (D.D.C. 2008), summary judgment for an agency is only appropriate
after the agency proves that it has “fully discharged its [FOIA] obligations.” Moore v.
Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996)).
The agency may prove compliance with the FOIA through affidavits from
officials within the relevant agency. See Defenders of Wildlife v. U.S. Border Patrol,
623 F. Supp. 2d 83, 87 (D.D.C. 2009); Robinson v. Att’y Gen. of U.S., 534 F. Supp. 2d
72, 78 (D.D.C. 2008). Such affidavits alone may justify a grant of summary judgment
so long as they “describe the documents and the justifications f or nondisclosure with
reasonably specific detail, demonstrate that the information withheld logically falls
within the claimed exemption, and are not controverted by either contrary evidence in
the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656
F.2d 724, 738 (D.C. Cir. 1981) (footnote omitted). The agency may also opt to submit
the withheld material for review by the Court in camera, or it may submit a listing of
the material that was withheld in response to a FOIA request, along with a specific
statement of the reasons for the withholding. See Judicial Watch, Inc. v. FDA, 449 F.3d
141, 145-46 (D.C. Cir. 2006) (describing purpose and requirements of a Vaughn index).
While the pleadings of pro se parties are to be “liberally construed, and a pro se
complaint, however inartfully pleaded, must be held to less stringent standards than
7
formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam) (internal quotation marks and citations omitted), “[t]his benefit is not . . . a
license to ignore the Federal Rules of Civil Procedure[.]” Sturdza v. United Arab
Emirates, 658 F. Supp. 2d 135, 137 (D.D.C. 2009) (citation omitted). This means that,
in FOIA cases as elsewhere, a pro se plaintiff must meet his burden of proving that
there exists a genuine dispute as to a material fact to survive a motion for summary
judgment. See, e.g., Brillhart v. FBI, 869 F. Supp. 2d 12, 17 (D.D.C. 2012) (granting
summary judgment in a FOIA case where a pro se plaintiff failed to prove genuine
dispute of material fact as to adequacy of defendant’s search for documents) ; see also
McCauley v. Salazar, No. 11-2296, 2014 WL 1500048, at *3 (D.D.C. Apr. 17, 2014)
(granting summary judgment where pro se plaintiff failed to prove there existed a
genuine dispute of material fact).
III. DISCUSSION
To justify the redactions that were made with respect to the documents
Defendants produced in response to Plaintiff’s FOIA request, Defendants have invoked
several exemptions from the laws governing disclosure of documents—only some of
which are currently in dispute. Defendants claim to have withheld information on the
basis of FOIA Exemptions 6, 7(C), 7(E), and 7(F), as well as Privacy Act Exemption
(j)(2), but in his opposition to Defendants’ summary judgment motion, Plaintiff
responds only to Defendants’ arguments regarding the applicability of FOIA
Exemptions 7(C) and 7(E). (See Pl.’s Opp’n at 2-4.) This Court construes Plaintiff’s
failure to respond to Defendants’ claim that documents were properly redacted under
FOIA Exemptions 6 and 7(F) and Privacy Act Exemption (j)(2) as a concession that
8
these exemptions were properly invoked, and summary judgment will be entered in
Defendants’ favor with respect to the withholdings that were made pursuant to these
exemptions. See Gamboa v. Exec. Office for U.S. Att’ys, No. 12-1220, 2014 WL
4219724, at *7 (D.D.C. Aug. 26, 2014) (“Absent any opposition from plaintiff . . . the
Court treats their arguments as conceded.”); Augustus v. McHugh, 870 F. Supp. 2d 167,
172 (D.D.C. 2012) (finding that, after failing to respond to agency’s justifications,
Plaintiff’s “arguments will be deemed conceded, and summary judgment will be en tered
in favor of the Secretary”); Brillhart, 869 F. Supp. 2d at 15 (“Plaintiff does not
challenge, and thus concedes, defendant’s properly documented reasons for redacting
information[.]”).
Turning to the only two disputed exemption grounds —FOIA Exemptions 7(C)
and 7(E)—this Court accepts Defendants’ argument that Exemption 7(E) was properly
applied but concludes that the record is insufficient to permit a ruling on the
applicability of Exemption 7(C) at this time, as explained further below.
A. Exemption 7(C)
As previously noted, Exemption 7(C) permits the withholding of law
enforcement information that “could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). In order to
determine whether information was validly withheld under Exemption 7(C), the Court
must balance the privacy interest of the affected party with the public ’s interest in the
information, see Favish, 541 U.S. at 172. Defendants assert that unnamed third parties
have a privacy interest that justifies the redactions here because “[r]eleasing their
identities and information . . . would place each of these persons in such a position that
9
they may suffer undue invasions of privacy, harassment and humiliation from disclosure
of their identities in a law enforcement investigatory file.” (Defs.’ Mem. at 29.)
However this contention is purely conclusory; the materials that Defendants submit in
support of their summary judgment motion do not even speak to the privacy interests at
stake, much less establish that releasing the information would jeopardize any such
interests.
Defendants have submitted (1) an affidavit from Catrina Pavlik-Keenan, Director
of ICE’s FOIA office (Decl. of Catrina Pavlik-Keenan (“Pavlik-Keenan Decl.”), ECF
No. 17-1, at 2-20.); (2) a Vaughn index listing the documents, the number of pages, and
the exemptions that are applicable to each document (Vaughn Index, Ex. 1 to Defs.’ Mot.,
ECF No. 17-1, at 22-63); and (3) various administrative documents related to Plaintiff’s
initial request for documents and subsequent administrative appeal (see Exs. 2-8 to
Pavlik-Keenan Decl., ECF No. 17-1, at 65-87). The affidavit lays out the procedural
history of Plaintiff’s FOIA request, lists the various exemptions that ICE has applied,
and then attempts to explain why those exemptions have been applied in this case.
(Pavlik-Keenan Decl. ¶¶ 11-52.) However, the affidavit adopts the same conclusory
tone as Defendants’ motion for summary judgment—often relying on a restatement of
the relevant legal standard as evidence of an exemption’s applicability. (See, e.g.,
Pavlik-Keenan Decl. ¶ 44 (“The release of this information in the context of these
records could reasonably cause these individuals humiliation, embarrassment, hostility
which could constitute a clearly unwarranted invasion of privacy.”).)
Defendants’ Vaughn index fares no better for purposes of the instant motion.
The Vaughn index contains four columns: the first column contains the page numbers
10
of the relevant documents; the second column lists each document by number; the third
column states the exemptions applicable to each document; and the fourth column
provides additional statements related to the exemptions listed in the third column.
Although the Vaughn index lists all eighty documents that Defendants found responsive
to Plaintiff’s FOIA request, in the second column it identifies each and every document
as a “Report of Investigation” or “ROI”. (See Vaughn Index.) Thus, it is entirely
unclear what sort of information each document contains even in the broadest terms.
As noted, the Vaughn index does reveal that the documents range in length from one to
six pages, which indicates that there is some difference in content between each
document. (Compare id. at 43 (listing six pages for ROI 043) with id. at 49 (listing one
page for ROI 054).) But a statement related to page length alone hardly qualifies as the
kind of “specific factual description of each document sought,” Smith v. DOL, 798 F.
Supp. 2d 274, 281 (D.D.C. 2011), that has been found to be sufficient to substitute for
submission of the documents themselves. 6
Significantly, in the third column of Defendants’ Vaughn index, the same three
FOIA exemptions are listed as applying to every document—Exemptions 6, 7(C), and
7(E)—and in the fourth column, the exact same boilerplate language is used to describe
the redactions in every document, despite the fact that all of the exemptions cited
presumably do not apply to every single redaction in every document. In this regard,
the Vaughn index presents a sort of wholesale description of the documents and
redactions with respect to the entire production, without connecting each exemption to
6
Although it is well established that the government can ordinarily submit a Vaughn index in lieu of
the documents at issue, see Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006), there is
also no question that the index must provide a description that is sufficiently detailed to permit the
Court to make the requisite analysis.
11
each redaction, and it thereby fails to provide any means for identifying or
distinguishing between any of the redactions contained in the responsive documents.
Although a Vaughn index has “no set form,” Lardner v. FBI, 852 F. Supp. 2d
127, 137 (D.D.C. 2012), it is well established that the agency’s listing must
nevertheless “enable the court and the opposing party to understand the withheld
information in order to address the merits of the claimed exemptions.” Judicial Watch,
Inc., 449 F.3d at 150. To this end, a Vaughn index should “provide ‘a relatively
detailed justification, specifically identifying the reasons why a particular exemption is
relevant and correlating those claims with the particular part of a withheld document to
which they apply[.]’” Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (quoting
King v. DOJ, 830 F.2d 210, 219 (D.C. Cir. 1987)). This last element—correlating the
justification with a specific part of a document—is especially important in a case such
as this one, where Plaintiff is not contesting every exemption; yet, these critical links
are entirely missing from the Vaughn index that Defendants have submitted to justify
the redactions at issue here.
What is more, this Court notes that the record contains only one of the twenty-
five partially redacted documents Plaintiff is challenging. When combined with the
inadequacy of the Vaughn index, the lack of access to the documents at issue means that
the Court cannot possibly determine the nature of the disputed documents, much less
evaluate the extent of the redactions that have purportedly been made to protect
personal privacy. As explained, an evaluation of Defendants’ application of Exemption
7(C) requires the Court to consider the strength of a third party’s privacy interest,
which, in turn, might depend on the the context in which the third party is mentioned .
12
However, with respect to the instant dispute, this Court has not been provided with
either a detailed description of the documents at issue or a copy of the redacted
materials.
Finally, there is some reason to question whether Defendants’ Exemption 7(C)
redactions are entirely appropriate. Based on what little information the record here
contains, Defendants may not be able to rely on the Exemption 7(C) privacy interest
argument with respect to at least one individual whose name has purportedly been
redacted because, according to Plaintiff, that individual’s name appears in at least one
of the redacted documents provided to him, perhaps as a result of an administrative
oversight. (See Compl. at ¶ 11.) 7 Plaintiff argues, for good reason, that Defendants
cannot reasonably contend that an “undue invasion[] of privacy, harassment and
humiliation” would result from this individual being identified elsewhere in that
document or in the other materials (Defs.’ Mem. at 29), and this Court notes that
Defendants have provided no other explanation for continuing to withhold information
pertaining to that individual.
As a result of the various deficiencies described, this Court concludes that it does
not have sufficient information to rule on the propriety of Defendants’ reliance on
Exemption 7(C), and will order that Defendants provide, for in camera review, copies
of the presumably small number of disputed documents that contain Exemption 7(C)
withholdings, in both their redacted and unredacted form. See PHE, Inc. v. DOJ, 983
F.2d 248, 252 (D.C. Cir. 1993) (“We have suggested that in camera review is
appropriate when agency affidavits are not sufficiently detailed to permit meaningful
7
This is not just any witness—the named witness is supposedly the person who Plaintiff alleges
provided potentially exculpatory information to Defendants. (Pl.’s Opp’n at 3.)
13
assessment of the exemption claims.”); see also Hall & Assocs. v. EPA, 846 F. Supp. 2d
231, 245 (D.D.C. 2012) (noting that in camera review is authorized by 5 U.S.C.
§ 552(a)(4)(B) and may be performed at the discretion of the trial court). 8 This Court
will further order Defendants to provide a revised Vaughn index that identifies which
FOIA exemptions apply to which redactions with respect to the entire production. The
revised index should also provide a context-specific justification for the application of
Exemption 7(C), stating Defendants’ position regarding exactly why disclosure would
compromise an individual’s privacy interests—it is not enough to copy and paste the
same boilerplate language each time that exemption is invoked. Such specificity is
especially important here because certain privacy interests may no longer exist in light
of Defendants’ possibly inadvertent disclosure of the identity of at least one person
whose name appears in the documents.
B. Exemption 7(E)
As previously explained, Exemption 7(E) permits the withholding of law
enforcement information that “would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law[.]” 5 U.S.C. § 552(b)(7)(E). In their motion
for summary judgment, Defendants state that they have used this exemption to withhold
“law enforcement database codes, case numbers, and numeric references ” (Defs.’ Mem.
at 30), and Plaintiff asserts in his opposition that he is not interested in any such
8
The total number of documents at issue in this case is relatively small—only 25 documents totaling 73
pages. The number of documents to be provided for in camera review may turn out to be even smaller,
given that this Court only intends to evaluate those documents that contain the information that has
been withheld on the basis of Exemption 7(C).
14
numbers; instead, he cares only about the substantive content of the documents that
have been redacted (see Pl.’s Opp’n at 3 (stating that Plaintiff “is not seeking any TECS
code, reference code, agents’ names, etc.”)). It is entirely possible that Defendants’
boilerplate Vaughn index and blanket references to Exemptions 7(C), 7(E), and 7(F)
have led to confusion regarding precisely what information has been withheld. In any
event, the kinds of information that Defendants say has been redacted under Exemption
7(E)—which Plaintiff asserts that he is not requesting—is precisely the type of
technical information that Exemption 7(E) protects. Therefore, to the extent that such
information has been redacted from the contested documents (and, again, Defendants’
recitation of the same generalized description for each document prevents this Court
from being able to identify any specific instances in which Exemption 7(E) was
invoked), there is no genuine dispute that Exemption 7(E) applies.
Plaintiff does make one argument against application of this exemption that
warrants addressing, notwithstanding the concession above. Plaintiff claims that he
already has some of the technical information that ICE has redacted, such as the names
of certain law enforcement agents, and therefore, Plaintiff argues, the agency’s need to
withhold such information is rendered “moot.” (Id. at 3.) This Court construes
Plaintiff’s characterization as an argument that the redacted information has already
entered the public domain and is therefore non-exemptible.
It is clear beyond cavil that information in the public domain cannot be exempted
from the FOIA’s disclosure requirement. Davis v. DOJ, 968 F.2d 1276, 1279 (D.C. Cir.
1992). For the public domain exception to apply, however, Plaintiff must point to
“specific information in the public domain that appears to duplicate that being
15
withheld.” Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983). Here,
Plaintiff claims that he already obtained the codes, numbers, and references that
Defendants have withheld pursuant to Exemption 7(E) through an ICE investigation
report that was released “[p]rior to Plaintiff’s criminal trial in 2009” (Pl.’s Opp’n at
3)—an argument that suggests that the information was revealed as a result of trial -
related discovery obligations. Unfortunately for Plaintiff, with respect to reliance on
the public domain exception to an otherwise applicable FOIA exemption,
“constitutionally compelled disclosure to a single party simply d oes not enter the public
domain.” Cottone v. Reno, 193 F.3d 550, 556 (D.C. Cir. 1999). 9
Finally, there appears to be a strong possibility that some information, such as
the names of law enforcement officials or other parties, may be exemptible under both
FOIA Exemption 7(C) and Exemption 7(E). Given this Court’s finding that in camera
review is necessary to determine the applicability of Exemption 7(C), Defendants shall
inform the Court, through their updated Vaughn index, whether and to what extent
Exemption 7(E) forms an independent basis for an Exemption 7(C) redaction. Such
specificity will permit the Court to determine the extent to which the information can be
withheld on Exemption 7(E) grounds even if the Exemption 7(C) basis has not been
adequately invoked with respect to a particular redaction.
IV. CONCLUSION
For the foregoing reasons, the Court will GRANT IN PART and DENY IN
PART Defendants’ motion for summary judgment. There is no genuine issue of
material fact in this case regarding Defendants’ invocation of FOIA Exemptions 6,
9
Plaintiff’s argument may have had some traction if the redacted information had been introduced as
evidence during Plaintiff’s trial, see Cottone, 193 F.3d at 554-56, but Plaintiff states only that
Defendants “released” the report to him “[p]rior to” his trial. (Pl.’s Opp’n at 3.)
16
7(E), and 7(F) and Privacy Act Exemption (j)(2); therefore, this Court will enter
judgment in Defendants’ favor with respect to the redactions that are based on those
exemptions. With respect to application of Exemption 7(C), Defendants have thus far
failed to meet their obligations under the FOIA, so, as set forth in the separate order
that accompanies this opinion, the Court will require Defendants to submit the
following: (1) redacted versions of each of the documents at issue in this case that
contain redactions based on Exemption 7(C), (2) unredacted versions of those same
documents, which will be reviewed in camera, and (3) a revised Vaughn index that
clearly lays out which exemption applies to which redaction and the reason for that
exemption’s applicability. 10
DATE: September 30, 2014 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
10
A revised index will not only permit the Court to identify clearly which redactions are based on
Exemption 7(C), but will also assist the Cour t and the parties in determining which of the other
redactions are grounded on bases that have either been conceded as proper or are authorized by the
Court in this opinion.
17