Isiwele v. United States Department of Health and Human Services

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ENITAN OSAGIE ISIWELE, )

)

Plaintiff, )

)

v. ) Civ. Action No. 12-1447 (ABJ)

)

UNITED STATES DEPARTMENT OF )

HEALTH AND HUMAN SERVICES et al., )

)

Defendants. )

_________________________________ )

MEMORANDUM OPINION

Plaintiff is a federal prisoner who has brought suit against several federal agencies and

agency components as well as the Administrative Office of the United States Courts. He

challenges defendants’ “withholding of certain information” in response to requests he made

under the Freedom of Information Act, 5 U.S.C. § 552, and he seeks declaratory and injunctive

relief, including “expedited service and fee waiver or reduction of fees.” Pl.’s Amended Verified

Compl. [Dkt. # 29] at 1. In addition to the Freedom of Information Act (“FOIA”), plaintiff

invokes the Privacy Act, 5 U.S.C. § 552a, the Administrative Procedure Act (“APA”), 5 U.S.C. §

701, the Declaratory Judgment Act (“DJA”), 28 U.S.C. § 2201, and the All Writs Act, 28 U.S.C. §

1361. Am. Compl. at 1.

Pending before the Court are Defendants’ Partial Motion to Dismiss or, in the Alternative,

for Summary Judgment [Dkt. # 39], Plaintiff’s Motion for Summary Judgment or, in the

Alternative, for Discovery [Dkt. # 48], and Plaintiff’s Motion for In Camera Review [Dkt. # 49].

The parties have addressed all issues raised in the complaint with the exception of two requests.

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See June 16, 2014 Order (staying the proceedings in part). Upon consideration of the entire

record, and for the reasons explained below, the Court will grant defendants’ motion in part and

deny it in part.

In addition, the Court will deny plaintiff’s motion for summary judgment since it is not

accompanied by “a statement of material facts as to which [plaintiff] contends there is no genuine

issue,” LCvR 7(h), and because, with respect to those claims for which the Court will grant

judgment in favor of the defendants or remand the matter back to the defendants for further

processing, it is moot. The Court will also deny plaintiff’s motion for discovery and motion for in

camera review in light of the declarations defendants have proffered in support of summary

judgment. See Schrecker v. U.S. Dep't of Justice, 217 F. Supp. 2d 29, 35 (D.D.C. 2002), aff'd, 349

F.3d 657 (D.C. Cir. 2003) (“Discovery in FOIA is rare and should be denied where an agency’s

declarations are reasonably detailed [and] submitted in good faith[.]”); Larson v. Dep't of State,

565 F.3d 857, 870 (D.C. Cir. 2009), quoting Hayden v. NSA, 608 F.2d 1381, 1387 (D.C. Cir. 1979)

(“ Although district courts possess broad discretion regarding whether to conduct in camera

review. . ., we have made clear that ‘[w]hen the agency meets its burden by means of affidavits, in

camera review is neither necessary nor appropriate,’ ”) (alteration in original). When, as is the case

here, the record includes deficient declarations, “the courts generally will request that the agency

supplement its supporting declarations” instead of ordering discovery or the submission of

documents for in camera review. Judicial Watch, Inc. v. U.S. Dep't of Justice, 185 F. Supp. 2d 54,

65 (D.D.C. 2002), citing Nation Magazine, Washington Bureau v. United States Customs Service,

71 F.3d 885, 892 (D.C. Cir. 1995) (other citation omitted).

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BACKGROUND

This action arises from plaintiff’s FOIA requests to: (1) certain components of the

Department of Health and Human Services (“HHS”), (2) the Department of Justice’s Executive

Office for United States Attorneys (“EOUSA”), and (3) certain components of the Department of

Homeland Security (“DHS”). The relevant facts as documented by Defendants’ Statement of

Material Facts as to Which There is No Genuine Dispute are as follows.

A. HHS Records

1. OIG Request # 2010-0351KS

On February 5, 2010, plaintiff requested from HHS’s Office of Inspector General (“OIG”)

“all [] administrative and personal records, all citizen complaints, incident reports, disciplinary

actions, and related internal affairs information pertaining to the conduct of HHS-OIA Special

Agent Joseph Reikers.” Decl. of Robin R. Brooks [Dkt. # 39-2], Ex. 1. On June 22, 2010, HHS

informed plaintiff that it was neither confirming nor denying the existence of responsive records,

that such records, if any, would be exempt from disclosure under FOIA exemptions (b)(6) and/or

(b)(7)(C), see 5 U.S.C. § 552(b), and that plaintiff could contact the Freedom of Information

Officer in the Program Support Center for any requested “personnel” records. Id., Ex. 2. In

addition, HHS informed plaintiff about his right to appeal the determination within 30 days to the

Deputy Assistant Secretary for Public Affairs. Id.

2. OIG Request # 2011-0380

In a letter dated April 18, 2011, plaintiff clarified an earlier request that sought “all

information in the possession of . . . Special Agent [] Reikers,” and explained that he was seeking

“the full disclosure of all documents pertaining to myself. . . my company i.e. Galaxy Medical

Supply, LLC and U.S. v. Enitan Osagie Isiwele, Case No. 1:08-CR-163, that were either ‘created,

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prepared by or received and reviewed by . . . Reikers.” Brooks Decl., Ex. 5. In addition, plaintiff

requested a fee waiver because the requested information “is of primarily public interest, or

non-commercial purpose.” Id.

On July 22, 2011, OIG informed plaintiff that it had located 163 responsive pages, 13 of

which were being released in part and 42 of which were being withheld in their entirety. OIG

further informed plaintiff that it was referring the remaining 108 pages to EOUSA and provided

the contact information for that “FOIA office now responsible for processing [those] records.”

Id., Ex. 6. OIG withheld information under FOIA exemptions 5, 6, 7(C), and 7(E), and informed

plaintiff about his right to appeal its determination within 30 days. Id. On October 7, 2011, OIG

issued “an addendum,” informing plaintiff that it was releasing an additional 14 pages in part that

had been “inadvertently referred” to DOJ. Id., Ex. 7. OIG withheld information from that

release under FOIA exemptions 6 and 7(C), and again informed plaintiff about his right to appeal

the determination within 30 days. Id.

3. OIG Request # 2011-0598SS

In a letter dated July 5, 2011, captioned “Supplementary Request Under the [FOIA],

Expedited Services Requested,” plaintiff requested all records pertaining to Special Agent

Riekers, including “(i) performance reviews for the previous 5 years; (ii) compensation records;

(iii) ‘critical’ employment records for the previous years; (iv) administrative grievances and

internal investigation records for the past 5 years, and (v) [OIG’s] sponsored training programs.”

Plaintiff also requested a fee waiver. Id., Ex. 8.

On July 18, 2011, OIG denied plaintiff’s request for a fee waiver because he “did not

proffer any support of how the requested records, if any exist, would significantly contribute to the

public’s understanding of HHS operations.” Id., Ex. 9 at 2. OIG also informed plaintiff about

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his right to appeal administratively within 30 days. On September 1, 2011, OIG informed

plaintiff that it had located 86 records responsive to his request for the performance reviews and

that it was releasing 85 pages in part and withholding one page in full. OIG withheld information

under FOIA exemptions 6, 7(A), and 7(C). In addition, OIG neither confirmed nor denied the

existence of records pertaining to administrative grievances and internal investigations, and it

informed plaintiff that any such information would be exempt under those same exemptions.

OIG referred the request for compensation records to “the PHS” FOIA office to process and

provide a direct response to plaintiff, and informed plaintiff that his request for “OIG sponsored

training programs and critical employment” failed to “sufficiently describe the desired records.”

Id., Ex. 10. No fee was assessed because the costs were “under the Department’s $25 cost

effective threshold.” The letter closed with the notice of the right to appeal. Id.

4. CMS Request # 0929 2009 7017

On September 29, 2009, plaintiff requested “multiple categories of agency records related

to sixteen individual Medicare beneficiaries” and “billing information for disaster claims, and

information regarding the requirements for filing disaster claims for beneficiaries affected by

hurricanes Rita and Katrina.” Decl. of Michael S. Marquis [Dkt. # 39-4] ¶ 5. On October 4,

2010, the Centers for Medicare & Medicaid Services (“CMS”) denied plaintiff’s request under

FOIA exemption 6, because he had not “presented valid authorizations . . . signed by the subject(s)

of the records,” and advised him about his right to appeal to the Deputy Administrator within 30

days. Id., Ex. 4 [Dkt. # 44-1]. “CMS did not receive any subsequent correspondence from the

Plaintiff indicating he wished to appeal this decision.” Id. ¶ 6. See Pl.’s Response to Defs.’

Statement of Material Fact as to Which There is No Genuine Dispute (“Pl.’s Opp’g Facts”) [Dkt. #

47-1] ¶ 1 (“Plaintiff instead of pursuing #0929 2009 7017 due to its deficiency, decided to submit

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a new written FOIA request dated on or about February/March 2010 and duly received an

acknowledgment letter . . . on or about March 23, 2010, signed by Mr. Michael S. Marquis[.]”).

5. CMS Requests ## 0503 2011 7018; 0503 2011 7020; 0503 2011 7054; 0503 2011 7055

Between April 24, 2011 and April 27, 2011, plaintiff submitted four more requests to

CMS. The first request dated April 24, 2011 (# 7018) sought Medicare claims data for Sigmah

Home Health Services, Inc. of Houston, Texas, and detailed beneficiary claims data for years

2005-2008. Marquis Decl. ¶ 17. The second request dated April 25, 2011 (# 7020) sought

Medicare claims data pertaining to power mobility devices, manual wheelchairs, power

wheelchairs, and power operated vehicles for First Choice Medical Supply Company between

2000 and 2006, and provided an owner’s name. Id. The third request dated April 27, 2011 (#

7054) sought similar claims information for “Lggo Global Equipment & Medical Services”

between 2005 and 2008, and provided an owner’s name. The fourth request also dated April 27,

2011 (#7055) sought similar claims information and prescriptions written by Dr. Michael D. Kim

of Houston, Texas, between 2001 and 2006. Id.

By letter dated June 29, 2011, plaintiff acknowledged that the search fee for his four

requests could exceed $250 and that he was “willing to pay” the costs. He then requested that

CMS remove those requests from “tolling” and send them to “your Medicare Contractor for a cost

estimate and notify me in writing of the estimated costs” so that he could “make payment upon the

receipt of the notification letter and time specified.” Marquis Decl., Ex. 10 [Dkt. # 44-1]. The

Dallas Regional Office requested cost estimates of the search from two Medicare contractors,

Palmetto Government Benefits Administrators and CGS Administrators, LLC. Marquis Decl. ¶

18. An estimate of $368 was provided for the first request, but the administrators could not

provide estimates for the remaining three requests because they needed the providers’ identifier

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numbers, and, in the case of the subject of plaintiff’s third request “Lggo Global Equipment,” the

correct name. Id. ¶¶ 19-22. Plaintiff sent a follow-up letter on November 7, 2011 addressed to

the Director of CMS’s Freedom of Information Group, requesting that he “act promptly on these

FOIA requests” and complaining that he had been given “runaround treatment.” Am. Compl.,

Ex. 4J [Dkt. # 29-2]. CMS’s FOIA Division has no record of having received that letter.

Marquis Decl. ¶ 24.

In four separate letters dated May 16, 2012, CMS informed plaintiff that it was

“conducting a review of pending [FOIA] requests to ascertain if the requested information is still

desired” (hereafter “continued interest letter”). Marquis Decl., Ex. 11. Each referenced the

respective request number. Plaintiff was told to sign and return the letter within five working

days if he was still interested in receiving the documents; otherwise, CMS would “assume you are

no longer interested in receiving the documents and the case will be administratively closed.” Id.

Since “[t]he FOIA Division did not receive any replies to those letters,” CMS closed the four

requests two months later, on July 20, 2012 and July 27, 2012. Marquis Decl. ¶ 25.

6. CMS Requests ## 0708 2011 7009; 0708 2011 7010

On June 29, 2011, plaintiff submitted two requests to CMS. The first request (#7009)

sought Medicare claims data pertaining to power mobility devices, manual wheelchairs, power

wheelchairs, and power operated vehicles for two Houston-based durable medical equipment

companies -- Thurman Family Medical Services and Seniors Comfort & Caring Medical Services

-- between 2000 and 2005. Marquis Decl. ¶ 26. The second request (# 7010) sought similar

claims information and prescriptions written by Drs. Lewis Gottlieb, Jayshree Patel, and Charles

Frank Skripka, Jr., whom plaintiff identified as employees of a Houston-based clinic owned by Dr.

Gottlieb. Plaintiff sought the information for years 2000 through 2006. Id. ¶ 27.

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Since “NPI numbers could not be located for the named entities” in request # 7009, and for

Drs. Gottlieb and Skripka named in request # 7010, CMS “could not” conduct a search. Id. ¶¶

29-30. As for the third doctor named in the latter request, Dr. Patel, CMS located “an NPI number

[but] could not locate a corresponding PTAN number.” Hence, the Medicare contractor, CGS

Administrators located no records pertaining to Dr. Patel. Id. ¶ 30. CMS has no record that it

notified plaintiff about the foregoing result. Id. ¶ 31. However, on May 16, 2012, CMS sent

plaintiff a continued interest letter with regard to requests ## 7009 and 7010, and closed those

requests on July 10 and July 11, 2012, when plaintiff did not reply. Id. ¶ 32.

B. EOUSA Records

1. Requests ## 09-4535, 09-4784

After plaintiff’s three attempts to obtain records pertaining to his criminal prosecution in

the Eastern District of Texas, United States v. Isiwele, No. 1:08-CR-163, see Defs.’ Facts ¶¶ 32-43,

EOUSA acknowledged the request on January 13, 2010, and informed plaintiff that it would be

processed under request number 09-4784; EOUSA denied plaintiff’s request for expedited

processing. Decl. of Kathleen Brandon [Dkt.# 39-1] ¶¶ 12, 13.

By letter dated March 26, 2010, EOUSA then denied plaintiff’s request in full under FOIA

exemptions 3, 5, 7(A), 7(C), 7(D), and under section (j)(2) of the Privacy Act, 5 U.S.C. § 552a. 1

Brandon Decl., Ex. K. The letter further informed plaintiff that the office had withheld grand jury

material, that the responsive material included public records that could be obtained from the clerk

of the court or from EOUSA via a new FOIA request, and that he could appeal the determination

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Defendants assert throughout the record that information was withheld also under the Privacy

Act, 5 U.S.C. § 552a. As will be discussed, section (b)(2) of the Privacy Act specifically excepts

from its nondisclosure provisions documents that are otherwise required to be disclosed under the

FOIA.

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to the Office of Information Policy (“OIP”) within 60 days. Id. OIP affirmed EOUSA’s

decision by letter dated May 25, 2010, and advised plaintiff about his right to file a lawsuit. Id.,

Ex. P.

The criminal case file located in the U.S. Attorney’s Office in the Eastern District of Texas

consisted of approximately “(1) 2000 pages of court-filed/public records; (2) thirty-five pages of

Grand Jury Records; (3) five pages of correspondence; (4) fifty pages of attorney work product;

and (5) six pages of public source materials.” Decl. of Andrea Parker [Dkt. # 39-5] ¶ 18. The

file did not include “state/local/foreign enforcement records” since they “had already been

returned to the [Texas] Attorney General’s Office” at the end of the criminal trial in March of

2009. Id. & n.2. According to the Parker declaration, this was consistent with the practice in the

U.S. Attorney’s office at the time. See id., n.2.

On June 12, 2010, OIP “advised” the U.S. Attorney’s Office “to maintain the records

related to [plaintiff’s] request . . . for 120 days due to the possibility of ensuing litigation.” Id. ¶

21. After having “received no further communication regarding [the request],” and the

affirmance of plaintiff’s conviction “on appeal,” the criminal case file “was purged and closed on

October 19, 2012.” Id. ¶¶ 22-23. In accordance with the “policy and procedures for closing

files” in that U.S. Attorney’s Office, “many items were shredded, such as correspondence,

research, drafts, handwritten notes, and duplicates and copies.” Id. ¶ 23. “Any original

documents received from outside sources would have been returned to the originating source.”

Id.

2. Requests ## 09-4698, 10-3390

On November 23, 2009, plaintiff requested “the administrative and personnel records” of

Special Assistant United States Attorney Howard B. Blackmon, Jr., and Assistant United States

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Attorneys Christopher Tony Tortorice and Robert Rawls, and a copy of the U.S. Attorneys’

Manual. In addition, plaintiff requested expedited processing in light of a “sentencing hearing

later in December 2009.” Brandon Decl, Ex Q. EOUSA acknowledged the request by letter to

plaintiff dated January 7, 2010. Id., Ex. R. EOUSA “mistakenly” informed the U.S. Attorney’s

Office in the Eastern District of Texas that plaintiff had requested the attorneys’ oaths of office,

which were released to plaintiff, id. ¶¶ 26-28, with the exception of Blackmon’s since he was a

Special Assistant who was not actually employed by that office. Parker Decl. ¶ 25; see also

Brandon Decl. ¶ 35.

Plaintiff appealed and OIP remanded the request to EOUSA to “search for the [named

attorneys’] personnel files [and] the United States Attorneys’ Manual” and to “process any

responsive records . . . and provide the requester with any disclosable portions, subject to fees.”

Brandon Decl., Ex. V. OIP informed plaintiff about the remand by letter dated August 11, 2010,

and about his right to file a lawsuit if dissatisfied with the outcome of the appeal. Id., Ex. W.

The U.S. Attorney’s Office in the Eastern District of Texas received OIP’s remand letter on

September 2, 2010, and was advised by OIP “to maintain the records related to this request . . . for

120 days due to the possibility of ensuing litigation.” Parker Decl. ¶ 28.

By letter dated September 24, 2010, EOUSA informed plaintiff that the remanded request

for the records pertaining to AUSA’s Tortorice, Rawls, and Blackmon was assigned a new

number, 10-3390. Following a search in the Eastern District of Texas and the location of 37

pages pertaining to Tortorice and Rawls (who were employees of that office), EOUSA informed

plaintiff by letter dated April 8, 2011, that it was withholding all of the responsive pages under

FOIA exemption 6 and Privacy Act exemption (j)(2), and it further informed plaintiff of his right

to appeal the decision to OIP within 60 days. Brandon Decl., Ex. Y. Brandon states in her

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declaration filed here that the Privacy Act exemption was “mistaken[]” and “was not a basis for

withholding the documents.” Id. at 10, n.4.

Although plaintiff suggested in a letter dated April 18, 2011, that he did not need to appeal

the foregoing decision since it stemmed from his prior appeal of 09-4698, see Brandon Decl., Ex.

Z, plaintiff submitted an untimely appeal by letter of July 5, 2011, and requested that it be accepted

since he was “out on writ” for resentencing and was without his documents from May 9, 2011 to

June 24, 2011. Id., Ex. AA. Also by letter dated July 5, 2011, plaintiff submitted a document to

EOUSA captioned: “Supplementary Request Under the Freedom of Information Act, Expedited

Services Requested,” purportedly expanding his original request for personnel records to include

the three AUSAs’ “(i) performance reviews for the previous 5 years; (ii) compensation records;

(iii) ‘critical’ employment records for the previous 7 years; (iv) administrative grievances and

internal investigation records for the past 5 years[;] and (v) EOUSA’s “sponsored training

programs.” Plaintiff also requested a fee waiver. Id., Ex. BB. EOUSA apparently treated that

request “as a duplicate of . . . request 10-3390, which was pending appeal.” Brandon Decl. ¶ 40.

In a letter dated August 15, 2011, OIP noted that plaintiff had acknowledged his receipt of

EOUSA’s determination in the April 18, 2011 letter, which was dated “some three weeks before

you state you went ‘out on writ.’ ” It closed the appeal “due to [plaintiff’s] failure to timely

appeal,” id., Ex. DD, and denied plaintiff’s request for reconsideration on February 1, 2012. Ex.

EE.

3. Request # 10-2227

The number 10-2227 was assigned to the part of plaintiff’s November 29, 2009 request

seeking the U.S. Attorneys’ Manual. See Brandon Decl. ¶¶ 44-46. By letter of July 21, 2010,

EOUSA informed plaintiff that the Manual was publicly available at no cost via DOJ’s reading

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room, which he could access through an internet link set out in the letter. Id., Ex. GG. Plaintiff

was also informed that the Manual “consists of 1,100 pages, and duplication fees apply if you wish

to receive a paper copy of the entire multi-volume manual . . . .” Id. After the first 100 free

pages to which plaintiff was entitled, EOUSA assessed a duplication fee of $100 and provided

three options for plaintiff to obtain the document in paper form. Plaintiff could receive just the

free pages, all of the pages, or some of the pages. Id. at 2. If plaintiff chose the latter two

options, he was told to include the appropriate payment by check or money order, and “[i]f

payment is not received within 30 days from the date of this letter, your request will be closed and

any future requests for records will be rejected until payment is received.” Id. Finally, plaintiff

was informed that the letter constituted “final action” and that he could appeal to OIP within 60

days. By letter dated August 30, 2010, EOUSA informed plaintiff that this request was closed

due to his failure to respond to the July 21, 2010 letter “with your advance payment.” Brandon

Decl., Ex. HH.

4. Request # 11-2776-R (Referral from HHS)

In processing OIG Request 2011-0380, HHS referred 108 pages to EOUSA on July 22,

2011 “for action and direct response to the requester” since the documents had originated with

EOUSA. Id., Ex. JJ. On September 16, 2011, EOUSA released 19 pages in full, withheld 11

pages in full, and returned 78 pages to HHS “for direct response to [plaintiff].” Id., Ex. KK.

EOUSA withheld records under FOIA exemption 3 that had been sealed by a court and also

invoked exemption 7(C). Id. On appeal, OIP determined that the court records were no longer

sealed and on February 15, 2012, it remanded the request to EOUSA for additional processing.

Id., Ex. NN. On January 11, 2013, EOUSA released the 11 pages in full. Id., Ex. OO.

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C. Homeland Security Records

1. USCIS Request #NRC2009058601

On October 2, 2009, plaintiff requested from U.S. Citizenship and Immigration Services

(“USCIS”) all of his “records and alien files” from September 1, 1997 to the present. Decl. of

Brian J. Welsh [Dkt. # 39-7], Ex. A. Following a search of the National File Tracking System,

USCIS located plaintiff’s “Alien File,” and by letter dated February 5, 2010, informed plaintiff

that it had identified 1,030 responsive pages. Id. ¶¶ 8-9, 11. USCIS released 884 pages in their

entirety and 86 pages in part. It withheld 49 pages in full and referred 11 pages “to another

government agency for their direct response to you.” Id., Ex. C. USCIS invoked FOIA

exemptions 2, 5, 6, 7(C) and 7(E), and informed plaintiff about his right to appeal the

determination within 60 days. Id. In response to plaintiff’s appeal, USCIS released, on July 29,

2010, an additional 41 pages, 32 of which contained redactions under FOIA exemptions 2, 5, 6,

7(C) and 7(E). Id., Ex. E.

2. ICE Request # 2010FOIA2727

In February 2010, U.S. Immigration and Customs Enforcement (“ICE”) received the

eleven pages referred from USCIS. Decl. of Catrina Pavlik-Keenan [Dkt. # 39-6] ¶ 6. On March

11, 2010, ICE released the pages to plaintiff with portions redacted under FOIA exemptions 2, 6

and 7(C). Id., Ex. 2. The letter informed plaintiff about his right to appeal the decision within 60

days. In a supplemental response dated January 24, 2014, ICE stated that portions of the

previously released eleven pages were withheld under exemptions 6, 7(C) and 7(E). Id., Ex. 3.

3. ICE Requests # 2011FOIA4063 and 2013FOIA31766

On December 5, 2010, plaintiff requested from ICE records maintained by his name

“and/or an identifier assigned to my name, i.e. Alien Number-A 78 131 578.” Id., Ex. 5. The

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request listed specific forms “sought but not limited to[.]” FOIA Request at 1. ICE determined

that responsive records would be located in plaintiff’s Alien File and, thus, referred the request to

USCIS. Id. ¶ 11. Following a search, USCIS, in turn, referred one responsive page to ICE. Id.

¶ 13. On September 4, 2013, ICE released portions of the page and withheld information under

FOIA exemption 7(E). Id. ¶ 14.

4. NRC Request # 2011008278

ICE forwarded a copy of plaintiff’s December 5, 2010 request to the DHS’s National

Records Center (“NRC”), “as the requester was seeking his immigration records.” Decl. of Jill A.

Eggleston [Dkt. # 39-3] ¶ 8. By letter dated January 19, 2011, NRC acknowledged plaintiff’s

request, informed him, among other things, that the request was being placed in a complex track,

denied his request for a fee waiver, and advised about his right to appeal that decision within 60

days. Id., Ex. C. In response, on February 7, 2011, plaintiff narrowed his request to a list of

specific forms “for the sake of clarity . . . [and] to be placed in the simple-track system.” Id., Ex.

D. Plaintiff also requested separately that he receive all responsive records in paper form, as

opposed to on a compact disk, since he is a prisoner with limited or no access to a personal

computer. Id.

Also on February 7, 2011, plaintiff appealed the denial of his fee waiver request, stating

that he had satisfied the requirements for a waiver since “disclosure is not primarily in the

commercial interest . . . because the information sought is for litigation purpose[s][.]” Id., Ex. E.

The Office of General Counsel denied plaintiff’s appeal on April 14, 2011, finding no “significant

public understanding of government operations or activities that would result from the release of

the records you seek.” Id., Ex. F. The letter advised plaintiff about his right to “seek judicial

review in accordance with 5 U.S.C. § 552(a)(4)(B).” Id. at 2.

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By letter dated July 18, 2011, NRC informed plaintiff that it had located 882 responsive

pages. It released 727 pages in their entirety and 104 pages in part. NRC withheld 50 pages in

their entirety and referred one page “to another government agency for their direct response to

you.” Id., Ex. G. NRC withheld information under FOIA exemptions 5, 6, 7(C) and 7(E), and

informed plaintiff about his right to appeal the decision within 60 days. In a letter dated July 26,

2011, NRC assessed a duplication fee of $78.20, and informed plaintiff that his request would be

closed administratively if it did not hear from plaintiff within 30 days. Id., Ex. H. By letter dated

November 7, 2011, plaintiff stated that he “was ‘out on writ’ from July 28, 2011 to October 28,

2011” and did not receive NRC’s release letter until November 4, 2011. He requested “that you

toll the period of time . . . and reopen or reconsider your decision to administratively close this case

. . . .” Id., Ex. I. Plaintiff enclosed a money order for $78.20. Id. On December 30, 2011,

plaintiff requested a refund of the duplication fee because he had already received the same

documents from USCIS. Id., Ex. J. Also on December 30, 2011, plaintiff appealed the NRC’s

July 18, 2011 release determination. Id., Ex. K. On January 6, 2012, the appeal was denied as

untimely. Id. ¶ 18.

LEGAL STANDARD

A. Motions to Dismiss

In evaluating a motion to dismiss, the court must “treat the complaint’s factual allegations

as true . . . and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts

alleged.’ ” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000), quoting

Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (citations omitted). Nevertheless, the

court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts

alleged in the complaint, nor must the court accept plaintiff's legal conclusions. Browning v.

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Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002); see Warren v. District of Columbia, 353 F.3d 36,

39-40 (D.C. Cir. 2004) (differentiating unacceptable conclusions of law from acceptable

conclusions of fact).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face . . . . A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (internal quotation marks and citations omitted); see Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007) (a plaintiff’s “[f]actual allegations must be enough to raise a right to

relief above the speculative level . . . .”) (citations omitted). While “[a] pro se complaint . . . must

be held to less stringent standards than formal pleadings drafted by lawyers . . . even a pro se

complaint must plead factual matter that permits the court to infer more than the mere possibility

of misconduct.” Atherton v. District of Columbia Off. of Mayor, 567 F.3d 672, 681-82 (D.C. Cir.

2009) (internal quotations marks and citations omitted).

B. Motions for Summary Judgment

“FOIA cases are typically and appropriately decided on motions for summary judgment.”

Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009). The district court reviews the agency's

action de novo and “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B);

accord Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

On a motion for summary judgment, the Court generally “must view the evidence in the

light most favorable to the nonmoving party, draw all reasonable inferences in his favor, and

eschew making credibility determinations or weighing the evidence.” Montgomery v. Chao, 546

F.3d 703, 706 (D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

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(1986). But where, in a FOIA case, a plaintiff has not provided evidence that an agency acted in

bad faith, “a court may award summary judgment solely on the basis of information provided by

the agency in declarations,” Moore, 601 F. Supp. 2d at 12, provided that the declarations are not

“conclusory[,] . . . vague or sweeping.” King v. United States Dep't of Justice, 830 F.2d 210,

219 (D.C. Cir. 1987) (internal citation and quotation marks omitted).

ANALYSIS

I. Defendants’ Motion to Dismiss

Although plaintiff has invoked other statutes, see Am. Compl. at 1, the complaint is

predicated on the alleged unlawful withholding of agency records. Therefore, the

“comprehensiveness of FOIA” forecloses any claims purportedly brought also under the APA, the

DJA and the All Writs Act. Johnson v. Executive Office for U.S. Attorneys, 310 F.3d 771, 777

(D.C. Cir. 2002). See Ray v. Fed. Bureau of Prisons, 811 F. Supp. 2d 245, 249 (D.D.C. 2011)

(finding APA claim predicated on systemic delay in processing FOIA requests not sustainable);

Pickering-George v. Registration Unit, DEA/DOJ, 553 F. Supp. 2d 3, 4, n.1 (D.D.C. 2008) (“The

exclusive nature of the FOIA precludes mandamus relief.”). Furthermore, the Privacy Act is not

at issue because defendants have addressed plaintiff’s claims under FOIA, and “section (b)(2) of

the Privacy Act represents a Congressional mandate that the Privacy Act not be used as a barrier to

FOIA access.” Greentree v. United States Customs Serv., 674 F.2d 74, 79 (D.C. Cir. 1982).

Finally, defendants argue correctly that the FOIA does not apply to the Administrative

Office of the United States Courts because it is an arm of the judicial branch, which is not subject

to FOIA. See Banks v. Dep't of Justice, 538 F. Supp. 2d 228, 231 (D.D.C. 2008) (“The term

‘agency’ as defined for purposes of FOIA . . . expressly excludes the courts of the United States . .

. The phrase ‘courts of the United States’ is interpreted such that this exemption applies to the

17

entire judicial branch of government,” including the AOC), citing 5 U.S.C. §§ 551(1)(B),

552(f)(1); Washington Legal Found. v. United States Sentencing Comm’n, 17 F.3d 1446, 1449

(D.C. Cir. 1994); Chambers v. Div. of Prob., Admin. Office of U.S. Courts, No. 87-0163, 1987 WL

10133, at *1 (D.D.C. Apr. 8, 1987).

Accordingly, the Court grants defendants’ motion to dismiss the claims against the

Administrative Office of the United States Courts and as to any claims brought under the APA, the

DJA, the All Writs Act, and the Privacy Act.

II. Defendants’ Motion for Summary Judgment

FOIA requires government agencies to release records upon request in order to “ensure an

informed citizenry, vital to the functioning of a democratic society, needed to check against

corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire &

Rubber Co., 437 U.S. 214, 242 (1978). But because “legitimate governmental and private

interests could be harmed by [the] release of certain types of information,” Congress provided nine

specific exemptions to the disclosure requirements. FBI v. Abramson, 456 U.S. 615, 621 (1982);

see also Ctr. for Nat'l Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003) (“FOIA represents

a balance struck by Congress between the public’s right to know and the government’s legitimate

interest in keeping certain information confidential.”). These nine FOIA exemptions are to be

construed narrowly. Abramson, 456 U.S. at 630.

To prevail in a FOIA action, an agency must demonstrate that each document that falls

within the class requested either has been produced . . . or is wholly exempt from the [FOIA's]

inspection requirements.’ ” Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833

(D.C. Cir. 2001), quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978). In other words,

the agency must show that “materials that are withheld . . . . fall within a FOIA statutory

18

exemption.” Leadership Conf. on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 252 (D.D.C.

2005). An inadequate search may also constitute an improper withholding under the FOIA. See

Maydak v. U.S. Dep’t. of Justice, 254 F. Supp.2d 23, 44 (D.D.C. 2003). So, when the

reasonableness of the search is challenged or no responsive records are located, the agency

prevails on summary judgment if it shows that it made “a good faith effort to conduct a search for

the requested records, using methods which can be reasonably expected to produce the

information requested.” Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).

Defendants argue that summary judgment is warranted because: (1) plaintiff failed to

exhaust his administrative remedies as to some claims; and (2) defendants have properly applied

FOIA exemptions to the withheld material.

A. Exhaustion of Administrative Remedies

“Exhaustion of administrative remedies is generally required before filing suit in federal

court so that the agency has an opportunity to exercise its discretion and expertise on the matter

and to make a factual record to support its decision.” Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C.

Cir. 2003) (citation and internal quotation marks omitted); accord Wilbur v. CIA, 355 F.3d 675,

677 (D.C. Cir. 2004) (per curiam). A requester’s “failure to comply with an agency’s FOIA

regulations is the equivalent of a failure to exhaust” administrative remedies. West v. Jackson,

448 F. Supp. 2d 207, 211 (D.D.C. 2006) (citations omitted). “Courts have consistently confirmed

that the FOIA requires exhaustion of th[e] [agency’s] appeal process before an individual may

seek relief in the courts.” Oglesby, 920 F.2d at 62. In addition, “[e]xhaustion does not occur

until the required fees are paid or an appeal is taken from the refusal to waive fees.” Id. at 66.

The requester’s failure to exhaust does not deprive the Court of subject matter jurisdiction but

19

precludes judicial review “if the purposes of exhaustion and the particular administrative scheme

support such a bar.” Hidalgo, 344 F.3d at 1259 (citation and internal quotation marks omitted).

1. HHS Claims

HHS contends that plaintiff failed to exhaust his administrative remedies as to most of the

requests submitted to that agency. 2 In response to the four requests submitted to CMS between

April 24 and 27, 2011, CMS estimated the search fees to be $368 for the first request, which

plaintiff had indicated he was willing to pay, but CMS did not have sufficient information to

address the other three requests. Marquis Decl. ¶¶ 17-22. Approximately one year after plaintiff

submitted those requests, on May 16, 2012, CMS “sent out ‘continued interest’ letters” to

plaintiff’s last known address to determine if he “wished to continue pursuing the four requests.”

Id. ¶ 25. When plaintiff failed to respond, CMS closed the requests in July 2012. Id.

Defendants have not explained why CMS did not process plaintiff’s first request. CMS’s

declarant states “[w]e are unable to ascertain from the documents in the respective FOIA files

whether Plaintiff was provided with the [foregoing] estimate . . . or whether [he] was advised that

the agency was unable to locate the other three providers, with the information [he] originally

provided[.]” Id. ¶ 23. Therefore, defendants have not sustained their burden by showing that

plaintiff was advised about his right to appeal administratively, and an agency’s failure to “provide

2

In responding to defendants’ fact statement, plaintiff states that “instead of pursuing #0929

2009 7017 due to its deficiency, [he] decided to submit a new written FOIA request dated on or

about February/March 2010 and duly received an acknowledgment letter.” Pl.’s Opp’g Facts ¶ 1.

Plaintiff admits that he could not supply the acknowledgment letter or the tracking number, see

Am. Compl. ¶ 19, n.2, and he has not rebutted with any evidence CMS’s declaration that the

request was not received. See Marquis Decl. ¶ 7. Therefore, the Court finds that plaintiff has

stated no claim based on the alleged new request. See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (a complaint must contain

“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ”).

Even if he has, there is no indication in the record that the request has been processed, let alone

exhausted.

20

notice [to the requester] of [his] right to appeal” an adverse decision to the head of the agency is

“insufficient under the FOIA to trigger the exhaustion requirement.” Oglesby, 920 F.2d at 67.

Similarly, in response to the two requests submitted to CMS on June 29, 2011, CMS’s

declarant suggests that CMS had insufficient information to conduct a search but again admits that

he was “unable to ascertain . . . whether Plaintiff was subsequently advised that the agency was

unable to locate [responsive] records[.]” Marquis Decl. ¶¶ 30-31. CMS also closed those

requests when plaintiff failed to respond to the May 16, 2012 continued interest letters which were

sent to plaintiff nearly one year after he had submitted the requests. Id. ¶ 32. By the declarant’s

own admission, CMS cannot show that plaintiff received the no-records response and notice of his

right to appeal that would trigger the exhaustion requirement.

In sum, the record contains no evidence to trigger the exhaustion requirement with regard

to the HHS requests. Furthermore, CMS’s declarant acknowledges that the continued interest

letters probably should not have been sent to plaintiff since there is no indication that his interest in

the requests had waned. See Marquis Decl. ¶ 14 (“Had the FOIA Division been aware of the

outstanding fee invoices, the ‘continued interest’ letters would not have been issued.”).

Consequently, summary judgment based on plaintiff’s purported failure to exhaust his

administrative remedies as to CMS request numbers 0503 2011 7018, 7020, 7054, and 7055, and

CMS request numbers 0708 2011 7009 and 7010 is denied.

2. EOUSA Claims

EOUSA contends that plaintiff failed to exhaust his administrative remedies with regard to

request numbers 10-3390 and 10-2227. See Defs.’ Mem. at 30-31. The record shows, though,

that plaintiff did appeal the former request, but the OIP closed the appeal as untimely. See

Brandon Decl, ¶¶ 39-43. Plaintiff has done all he can do at the administrative level with regard to

21

Request Number 10-3390, and the record shows that EOUSA withheld all responsive records in

full under FOIA exemption 6. See id. ¶ 36. The Court therefore finds that addressing the merits

of that claim “presents no risk of undermining the purposes and policies underlying the exhaustion

requirement,” Wilbur, 355 F.3d at 677, and it declines to dismiss the claim based on Request

Number 10-3390 for failure to exhaust. See White v. Department of Justice, 893 F. Supp. 2d 24,

27 (D.D.C. 2012) (“Since plaintiff’s administrative appeal of the . . . ‘no records response’ would

be untimely and exhaustion is not jurisdictional, the Court finds it more prudent to resolve the

merits of this action.”).

Plaintiff does not dispute that he failed to pay the duplication fees assessed for Request

Number 10-2227, seeking the U.S. Attorneys’ Manual. See Brandon Decl. ¶¶ 47-50. Thus,

summary judgment is granted as to that request due to plaintiff’s failure to exhaust. 3

3. Homeland Security Claim

Like the EOUSA, the NRC closed plaintiff’s administrative appeal of its decision to

withhold information as untimely, Eggleston Decl. ¶¶ 13, 18, but it has also shown that responsive

records were released and FOIA exemptions were asserted. See id. ¶ 13 and Ex. G. The Court

does not find the purposes of exhaustion undermined by reaching the merits of the claim based on

NRC Request Number 2011008278 and, it also declines to dismiss that claim for failure to

exhaust.

3

Besides, EOUSA fulfilled its disclosure obligation as to Request Number 10-2227 by

informing plaintiff that the U.S. Attorneys’ Manual “is publicly available, free of charge, on the

worldwide web” and providing him the internet link. Brandon Decl. ¶ 47. See Oglesby, 920 F.

2d at 70 (finding “adequate under the FOIA” agency’s response that the requested records were

available in its public reading room and citing examples where “an agency need not respond to a

FOIA request for copies of documents [when] the agency itself has provided an alternative form of

access”) (citations and internal quotation marks omitted).

22

B. Defendants’ Asserted Exemptions

1. HHS, EOUSA, and NRC Records

HHS withheld information under FOIA exemptions 5, 6, 7(A), 7(C) and 7(E), see Defs.’

Mem. of P. & A. at 16, EOUSA withheld information under FOIA exemptions 3, 5, 7(A), 7(C) and

7(D), see id. at 25-29, and NRC withheld information under FOIA exemptions 5, 6, 7(C) and 7(E),

see Eggleston Decl., Ex. G. But neither the defendants’ supporting memorandum nor their

statement of material facts points to where in the voluminous record the exemptions are correlated

with the withheld information, and the references to the declarants’ sweeping descriptions of the

withheld information are equally unilluminating.

“[B]ecause ‘the agency alone possesses knowledge of the precise content of documents

withheld, the FOIA requester and the court both must rely upon its representations for an

understanding of the material sought to be protected.’ ” Baker & Hostetler LLP v. U.S. Dep't of

Commerce, 473 F.3d 312, 319 (D.C. Cir. 2006), quoting King v. Dep't of Justice, 830 F.2d 210,

218 (D.C. Cir. 1987) (footnote omitted). An agency may utilize a Vaughn index, affidavits or

declarations, or “other measures in combination with or in lieu of the index itself . . . ‘so long as

they give the reviewing court [and the plaintiff] a reasonable basis to evaluate the claim of

privilege.’ ” Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 146 (D.C. Cir. 2006),

quoting Gallant v. NLRB, 26 F.3d 168, 172-73 (D.C. Cir. 1994); see Vaughn v. Rosen, 484 F.2d

820, 826-28 (D.C. Cir. 1973) (discussing purpose of indexing and itemizing responsive records);

Span v. U.S. Dep't of Justice, 696 F. Supp. 2d 113, 121 (D.D.C. 2010) (“An agency’s explanation

for withholding information under FOIA exemptions must meet two requirements. First, it must

‘specifically identify[ ] the reasons why a particular exemption is relevant,’ and second, it must

‘correlat[e] those claims with the particular part of a withheld document to which they apply.’ ”),

23

quoting Mead Data Cent., Inc. v. Dep't of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977).

Furthermore, the agency’s showing must be sufficient to enable the Court to make a finding about

segregability. See Trans-Pacific Policing Agreement v. United States Customs Service, 177 F.3d

1022, 1028 (D.C. Cir. 1999) (placing an “affirmative duty” on the district court to address record

segregability).

Upon reviewing the defendants’ supporting memorandum, statement of material facts, and

declarations supplied by HHS, EOUSA and NRC, the Court finds the declarants’ descriptions of

the withheld information too sweeping and vague to permit an assessment of the asserted

exemptions. Therefore, summary judgment is denied without prejudice to reconsideration upon

defendants’ filing of Vaughn indexes or some equivalent documents that would reasonably

describe the records at issue and explain with specificity how the claimed exemptions apply to the

withheld material. Consequently, the Court will defer consideration of plaintiff’s challenge to

HHS’s search for responsive records. See Pl.’s Opp’g Facts ¶ 6.

2. DHS Records

(i) USCIS’s Withholdings

USCIS, as the custodian of DHS’s Alien Files, produced a considerable volume of

material, but withheld some information under FOIA exemptions, 3, 5, 6, 7(C), and 7(E). 4 Defs.’

Mem. at 32; see Welsh Decl., Vaughn Index [Dkt. # 39-7, ECF pp. 25-64].

4

DHS has withdrawn its exemption 2 justification asserted at the administrative level. Welsh

Decl, ¶ 15. In addition, the Vaughn index reflects that since releasing records in July 2010, DHS

has reconsidered certain other exemptions and has released additional records to plaintiff. See

Vaughn Index at 3.

24

a.) FOIA Exemption 3

Exemption 3 authorizes the government to withhold information that is “specifically

exempted from disclosure by statute” so long as (1) the statute “requires that the matters be

withheld from the public in such a manner as to leave no discretion on the issue; or” (2)

“establishes particular criteria for withholding or refers to particular types of matters to be

withheld; and if enacted after the date of enactment of the OPEN FOIA Act of 2009 [enacted Oct.

28, 2009], specifically cites to this paragraph.” 5 U.S.C. § 552(b)(3).

It is “beyond dispute” that 26 U.S.C. § 6103 “is the sort of nondisclosure statute

contemplated by FOIA Exemption 3,” which “leave[s] the IRS with no discretion to reveal those

matters publicly.” Tax Analysts v. IRS, 117 F.3d 607, 611 (D.C. Cir. 1997). In addition, § 6103

provides that tax returns and return information “shall be confidential” and prohibits any “officer

or employee of the United States” from disclosing such information “except as authorized by this

title.” 26 U.S.C. § 6103(a). See Judicial Watch, Inc. v. Soc. Sec. Admin., 701 F.3d 379, 380

(D.C. Cir. 2012) (affirming Social Security Administration’s exemption 3 invocation to tax return

information).

USCIS properly applied exemption 3 to “federal income tax returns, which are specifically

exempt from disclosure pursuant to . . . § 6103 of the Internal Revenue Code.” Vaughn Index at 3.

Therefore, summary judgment for the defendants is warranted on the exemption 3 withholdings.

b) FOIA Exemption 5

Exemption 5 bars disclosure of “inter-agency or intra-agency memorandums or letters

which would not be available by law to a party other than an agency in litigation with the agency.”

5 U.S.C. § 552(b)(5). A document may be properly withheld under exemption 5 only if it satisfies

“two conditions: its source must be a[g]overnment agency, and it must fall within the ambit of a

25

privilege against discovery under judicial standards that would govern litigation against the

agency that holds it.” U.S. Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1,

8 (2001). The Court of Appeals has interpreted exemption 5 “to encompass the protections

traditionally afforded certain documents pursuant to evidentiary privileges in the civil discovery

context, including materials which would be protected under the attorney-client privilege, the

attorney work-product privilege, or the executive deliberative process privilege.” Formaldehyde

Inst. v. Dep't of Health & Human Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989) (internal quotation

marks omitted). The agency seeking to withhold a document bears the burden of showing that it

falls within the cited exemption. Natural Res. Def. Counsel, Inc. v. Nuclear Regulatory Comm'n,

216 F.3d 1180, 1190 (D.C. Cir. 2000).

USCIS properly redacted the “handwritten notes” of a USCIS adjudicator from an

immigration worksheet (pages 240, 634) as deliberative process material because “the notes [are

pre-decisional] and reveal the adjudicator’s impressions and recommendations to a supervisor

regarding agency action on” a form application for immigration benefits. Vaughn Index at 10.

Similar information was redacted from Form I-130 (page 386), id at 25, and comprised a one-page

interoffice memorandum from an adjudicator that was withheld in full (page 427), id. at 26. See

Abtew v. United States Dep't of Homeland Sec., --- F. Supp. 3d ---, 2014 WL 2620982, at *4-5

(D.D.C. June 13, 2014) (discussing the deliberate process privilege and upholding exemption 5

application to USCIS document containing author’s “personal thoughts about the merits of the

asylum case”). Therefore, summary judgment for the defendants is warranted on the exemption 5

withholdings.

26

c) FOIA Exemptions 6 and 7(C)

The proper application of “privacy exemptions [6 and 7(C)] turns on a balance of ‘the

individual’s right of privacy against the basic policy of opening agency action to the light of public

scrutiny.’ ” CEI Wash. Bureau, Inc., v. Dep’t of Justice, 469 F.3d 126, 128 (D.C. Cir. 2006),

quoting U.S. Dep't of State v. Ray, 502 U.S. 164, 175 (1991). Therefore, the Court will address

those exemptions together.

Exemption 6 allows agencies to withhold “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). The purpose of exemption 6 is “to protect individuals from the injury and

embarrassment that can result from the unnecessary disclosure of personal information.” U.S.

Dep't of State v. Wash. Post Co., 456 U.S. 595, 599 (1982).

Exemption 7(C) exempts documents compiled for law enforcement purposes that “could

reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. §

552(b)(7)(C). In order for particular records to qualify for this exemption, the agency must first

demonstrate that the documents were compiled for law enforcement purposes. See Rural Hous.

Alliance v. U.S. Dep't of Agric., 498 F.2d 73, 80 (D.C. Cir. 1974). Plaintiff has not disputed that

“[s]ome documents” are subject to exemption 7 because they contain information related to

immigration fraud or were compiled for some other law enforcement purpose. Vaughn Index at

5-6; see, e.g., id. at 10 (redacting name of law enforcement officer from TECS law enforcement

database used “to record cases of suspected or identified immigration fraud”) and id. at 19-21

(redacting identities of law enforcement officers from FBI fingerprint record; notice to appear,

bond and custody processing worksheet; record of deportable/inadmissible alien; law enforcement

memorandum regarding plaintiff; and record of law enforcement check from the Intra Agency

27

Border Inspection System database). Furthermore, “courts regularly find [e]xemption 7

applicable to USCIS documents” that concern “ ‘the enforcement of a statute or regulation within

[USCIS’s] authority and . . . were compiled for adjudicative or enforcement purposes[.]’ ”

Gosen v. United States Citizenship & Immigration Servs., --- F. Supp. 3d ---, 2014 WL 6809183, at

*6 (D.D.C. Dec. 4, 2014), quoting Mezerhane de Schnapp v. United States Citizenship &

Immigration Servs., --- F. Supp. 3d ---, 2014 WL 4436925, at *3 (D.D.C Sept. 9, 2014) (alterations

in original), citing Skinner v. U.S. Dep't of Justice, 806 F. Supp. 2d 105, 113-16 (D.D.C. 2011);

Techserve Alliance v. Napolitano, 803 F. Supp. 2d 16, 29 (D.D.C. 2011). See Techserve Alliance,

803 F. Supp. 2d at 29 (noting that “USCIS collaborates with other agencies within and outside of

DHS to prevent immigration fraud[.]”).

The Court of Appeals has consistently held that exemption 7(C) applies when a FOIA

request for law enforcement records invokes the privacy interests of any third party mentioned in

those records (including investigators, suspects, witnesses, and informants), unless there is an

overriding public interest in disclosure. See Schrecker v. DOJ, 349 F.3d 657, 661 (D.C. Cir.

2003); Lewis v. DOJ, 609 F. Supp. 2d 80, 84 (D.D.C. 2009). In addition, the Court of Appeals has

determined that third-party identifying information contained in law enforcement records is

“categorically exempt” from disclosure under exemption 7(C) in the absence of an overriding

public interest. Nation Magazine, Washington Bureau v. United States Customs Service, 71 F.3d

885, 896 (D.C. Cir. 1995).

To determine whether exemptions 6 and 7(C) apply once the threshold requirements are

met, a court or agency must “weigh the ‘privacy interest in non-disclosure against the public

interest in the release of the records.’ ” Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999),

28

quoting Nat'l Ass'n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989). The

Court of Appeals instructs:

The public interest to be weighed against the privacy interest in this balancing

test is the extent to which disclosure would serve the core purposes of the FOIA

by contribut[ing] significantly to public understanding of the operations or

activities of the government. Thus, unless a FOIA request advances the

citizens’ right to be informed about what their government is up to, no relevant

public interest is at issue.

Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 33-34 (D.C. Cir. 2002) (citations and

internal quotation marks omitted) (alteration in original). The public interest showing requires

the production of evidence of official misconduct, not “a bare suspicion.” Nat’l Archives and

Records Admin. v. Favish, 541 U.S. 157, 174 (2004). To trigger the balancing requirement, then,

“the requester must produce evidence that would warrant a belief by a reasonable person that the

alleged Government impropriety might have occurred.” Id. Otherwise, there is no

“counterweight on the FOIA scale for the court to balance against the cognizable privacy interests

in the requested records.” Id. at 174-75; see Boehm v. FBI, 948 F. Supp. 2d 9, 31 (D.D.C. 2013)

(“[C]ourts in this Circuit have consistently held that where an individual seeks law enforcement

records that implicate the privacy interests of a third party, the requester bears the burden of

asserting the public interest at play.”) (citations omitted).

USCIS properly redacted under exemption 6 “personally identifiable information

pertaining to third parties,” which, if disclosed, “would pose an unwarranted invasion” of personal

privacy and that has no discernible public interest. Vaughn Index at 4-5. In addition, USCIS

properly redacted under exemption 7(C) “personal[] identifying information of federal law

enforcement personnel involved in compiling information relevant to the [law enforcement]

record(s) in question.” Id. at 6. Plaintiff has not come forward with any countervailing

29

evidence. Therefore, summary judgment for the defendants is warranted on the exemption 6 and

7(C) withholdings.

d) FOIA Exemption 7(E)

Exemption 7(E) protects from disclosure law enforcement records “to the extent that the

production of such . . . information . . . would disclose techniques and procedures for law

enforcement investigations of prosecutions, or would disclose guidelines for law enforcement

investigations of prosecutions if such disclosure could reasonably be expected to risk

circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). “Exemption 7(E) sets a relatively low bar

for the agency to justify withholding: Rather than requiring a highly specific burden of showing

how the law will be circumvented, exemption 7(E) only requires that the [agency] demonstrate

logically how the release of the requested information might create a risk of circumvention of the

law.” Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011) (alteration in original) (internal

quotation marks omitted).

USCIS withheld information concerning “the use of electronic database systems,

communications and instructions for Agency personnel related to possible interactions with

applicants, and information gathering techniques” for preventing and investigating immigration

fraud. Vaughn Index at 6-7. The release of such information could “allow applicants to

circumvent immigration laws, alter behaviors, or tailor actions” and, thus, weaken or defeat “the

Agency’s ability to effectively investigate and compile the information necessary to adjudicate

immigration applications.” Id. at 7. Plaintiff has not proffered any countervailing evidence.

Thus, summary judgment is warranted on the exemption 7(E) withholdings.

According to USCIS’s declarant, all documents withheld in full or in part were “carefully

reviewed in an attempt to identify reasonably segregable, non-exempt information. The

30

responsive records were redacted in a minimal manner so that only the exempt portions of a

particular record were deleted.” Welsh Decl. ¶ 15. The Court finds from the descriptions

provided in USCIS’s Vaughn index, the narrow scope of the redacted material, and the asserted

bases for withholding information that USCIS has satisfied its disclosure obligations under the

FOIA. Therefore, summary judgment is granted on USCIS’s withholdings.

ii) ICE’s Withholdings

For the reasons stated above, the Court finds that ICE properly redacted third-party

information from the twelve pages referred from USCIS under FOIA exemptions 6 and 7(C), see

Pavlik-Keenan Decl. ¶¶ 22-30, and “database codes, case numbers, and numeric references,

specifically from TECS,” under FOIA 7(E). Id. ¶¶ 33-35; Vaughn Index [Dkt. # 39-6, ECF pp.

43-44]. See Ortiz v. United States Dep't of Justice, --- F. Supp. 3d ---, 2014 WL 4449686, at *9

(D.D.C. Sept. 9, 2014) (citing cases approving withholding under exemption 7(E) of information

about TECS system and operating programs and computer access codes); accord Gosen, 2014 WL

6809183, at *7 (“Indeed, many courts have upheld the government's withholding of the same sort

of information [including codes] from the same databases [including TECS] that are at issue in this

case.”) (citations omitted).

Moreover, plaintiff has not questioned ICE’s referral of his initial request to USCIS upon

determining that any responsive records would be located in plaintiff’s Alien File.

Pavlik-Keenan Decl. ¶ 11. Therefore, summary judgment is granted on ICE’s withholdings.

C. Plaintiff’s Request for Refund

In addition to NRC’s withholdings, which are not addressed at this time, plaintiff requested

a refund of $78.20 because he “was deceived into paying for the same documents, which are

already in my possession.” Eggleston Decl., Ex. J (Dec. 30, 2011 Letter). But the request does

31

not concern the agency’s denial of a fee waiver, which is subject to judicial review under the

FOIA, nor is it premised on the statutory reasons for considering a fee waiver. See 5 U.S.C. §

552(a)(4)(A)(iii) (permitting disclosure of documents at no charge or a reduced charge if the

agency determines that “disclosure of the information is in the public interest because it is likely to

contribute significantly to public understanding of the operations or activities of the government

and is not primarily in the commercial interest of the requester”). Hence, the Court finds that it

lacks authority to consider plaintiff’s refund request. See Antonelli v. Bureau of Alcohol,

Tobacco, Firearms & Explosives, 555 F. Supp. 2d 16, 23, n.4 (D.D.C. 2008) (“Because the Court

finds no authority under the FOIA to interfere with the administrative processing of requests, it

will deny plaintiff's pending motions . . . for orders to compel EOUSA to refund money he

allegedly paid toward the assessed fees supposedly because EOUSA has not processed his

requests.”).

CONCLUSION

For the foregoing reasons, defendants’ motion is granted in part and denied in part, and

plaintiff’s motions are denied. A separate Order accompanies this Memorandum Opinion.

AMY BERMAN JACKSON

United States District Judge

DATE: March 30, 2015

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