UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SANTOS MAXIMINO GARCIA,

Plaintiff, v. Civil Action No. 16-cv-94 (JDB) EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS

Defendant.

MEMORANDUM OPINION

Plaintiff Santos Maximino Garcia, proceeding pro se, brought this action under the

Freedom of Information Act (“FOIA”),

, against defendant, the Executive Office

for United States Attorneys (“EOUSA”), Compl. [ECF No. 1] at 1. Plaintiff seeks “disclosure of

all information germane to prosecution witness Noe Cruz,” a cooperating witness who testified for

the government in Garcia’s federal criminal trial.

Asserting that it has satisfied its disclosure

obligations under FOIA, EOUSA moved for summary judgment pursuant to Rule 56 of the Federal

Rules of Civil Procedure. See Def.’s Mot. for Summ. J. [ECF No. 18] at 1. The Court advised

plaintiff of the need to respond to EOUSA’s motion and granted him an extension to file a

response. See Oct. 11, 2017 Order [ECF No. 19]. Plaintiff, however, has failed to respond, and

his time to do so expired over four months ago.

The Court finds that EOUSA’s search for the requested documents was adequate, and that

the agencies sufficiently justified withholding responsive documents under the relevant statutory

exemptions. Hence, for the reasons explained below, the Court will grant EOUSA’s motion for

summary judgment.

1 BACKGROUND

On November 16, 2014, plaintiff submitted a request to EOUSA for the release of

documents pursuant to FOIA. See Compl. Ex. A. In his request, plaintiff sought the disclosure of

“all information germane to prosecution witness Noe Cruz” relating to plaintiff’s criminal case,

United States v. Garcia, No. 05-0393 (D. Md. judgment issued May 13, 2009).

He claimed

that the prosecution “never attempted to ascertain the scope of [Cruz’s] criminal history” and was

“deliberately ignorant” as to Cruz’s rape charge, for which he was indicted in 2013, five years after

plaintiff’s trial. Compl. at 5.

On January 5, 2015, EOUSA notified plaintiff that his request was received. Compl. Ex.

B. EOUSA’s response informed plaintiff that records pertaining to a third party generally cannot

be released absent (1) “express authorization and consent of the third party,” (2) “proof that the

subject of the request is deceased,” or (3) “a clear demonstration that the public interest in

disclosure outweighs the third party’s personal privacy interest and that significant public benefit

would result from the disclosure of the requested records.”

Since plaintiff did not provide a

release, death certificate, or public justification for release, EOUSA explained that the release of

records concerning Noe Cruz would result in an unwarranted invasion of personal privacy.

On January 14, 2015, plaintiff appealed EOUSA’s decision to the Office of Information

Policy (“OIP”). Compl. Ex. C. He claimed that all documentation involving Cruz should be

disclosed, citing the D.C. District Court’s decision in Marino v. Drug Enforcement Administration,

(D.D.C. 2014).

OIP informed plaintiff on February 10, 2015 that his appeal

had been received a week earlier. Compl. Ex. D. On June 30, 2015, OIP notified plaintiff that it

had “affirm[ed], on partly modified grounds, EOUSA’s action on [plaintiff’s] request.” Compl.

Ex. E. OIP explained that, because any non-public records responsive to plaintiff’s request would

2 be categorically exempt from disclosure, EOUSA properly asserted FOIA Exemption 7(C) and

was not required to conduct a search for the requested records.

Blocked from receiving his requested information, plaintiff filed a complaint in this Court

on January 15, 2016, seeking the disputed materials. See Compl. EOUSA filed a motion to

dismiss on the same grounds provided in OIP’s denial of plaintiff’s FOIA request. See Mot. to

Dismiss [ECF No. 3] at 1. The Court denied the government’s motion, stating that “EOUSA’s

Exemption 7(C) claims are best considered as to specific documents, rather than in the abstract.”

See June 21, 2016 Order [ECF No. 7] at 2. EOUSA then forwarded plaintiff’s request to EOUSA’s

FOIA contact for the United States Attorney’s Office for the District of Maryland (“USAO-MD”)

and asked it to search for any records related to plaintiff’s prosecution. See Def.’s Mot. for Summ.

J. at 4. All systems within the USAO-MD likely to contain records responsive to plaintiff’s request

were searched, and EOUSA claims that “[t]here are no other records systems or locations within

EOUSA in which other files pertaining to Garcia were maintained.”

In the course of processing plaintiff’s request, EOUSA determined that certain records

originated from other agencies and, accordingly, referred those records to the Department of

Justice’s Criminal Division (“DOJ”), the Department of Homeland Security’s Immigration and

Customs Enforcement (“ICE”), and DOJ’s Bureau of Alcohol, Tobacco, Firearms, and Explosives

(“ATF”). Each agency prepared a declaration and a Vaughn index addressing all documents

withheld pursuant to an applicable FOIA exemption, in accordance with Vaughn v. Rosen,

(D.C. Cir. 1973). See Decl. of David Luczynski (“Luczynski Decl.”) and Luczynski

Decl. Ex. H (“EOUSA Vaughn Index”) [ECF No. 18-2]; Decl. of John E. Cunningham III

(“Cunningham Decl.”) and DOJ Vaughn Index [ECF No. 18-3]; Decl. of Matthew Riley (“Riley

3 Decl.”) and Riley Decl. Ex. 1 (“ICE Vaughn Index”) [ECF No. 18-4]; Decl. of Stephanie M.

Boucher (“Boucher Decl.”) and Boucher Decl. Ex. E (“ATF Vaughn Index”) [ECF No. 18-5].

EOUSA moved for summary judgment on July 7, 2017, claiming it had fulfilled its

obligations under FOIA. See Def.’s Mot. for Summ. J. at 1. A schedule issued by the Court

required plaintiff to file a response to defendant’s motion and any cross-motion for summary

judgment by September 8, 2017. See June 6, 2017 Order [ECF No. 17]. On October 11, 2017,

after no such response was filed, the Court advised plaintiff of the consequences of failing to

respond to a dispositive motion under Fox v. Strickland,

(D.C. Cir. 1988), and

ordered him to file any response to EOUSA’s motion for summary judgment by November 10,

2017, see Oct. 11, 2017 Order. Plaintiff has still filed no response; therefore, pursuant to the

October 11, 2017 Order and the D.C. Circuit’s decision in Winston & Strawn, LLP v. McLean,

, 507–08 (D.C. Cir. 2016), the Court may accept as undisputed defendant’s Statement

of Undisputed Material Facts in Support of Defendant’s Motion for Summary Judgment and may

decide the motion without the benefit of any opposition brief from plaintiff.

LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The party seeking summary judgment bears the initial responsibility of demonstrating the

absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett,

(1986). The moving party may successfully support its motion by identifying those portions of

“the record, including depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the motion only), admissions,

4 interrogatory answers, or other materials” which it believes demonstrate the absence of a genuine

dispute of material fact. Fed. R. Civ. P. 56(c)(1)(A); see Celotex,

.

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

Georgacarakos v. FBI,

(D.D.C. 2012) (quoting Defs. of Wildlife v. U.S.

Border Patrol,

(D.D.C. 2009)). FOIA is a means for citizens to “know

‘“what their Government is up to.”’” Nat’l Archives & Records Admin. v. Favish,

(2004) (citation omitted). Accordingly, FOIA requires federal agencies to release their records

to the public upon request, unless the requested information falls within one of nine statutory

exemptions to disclosure. See

(a)(3)(A), (b).

District courts review de novo an agency’s decision to withhold requested documents under

a statutory exemption, and the agency withholding responsive documents bears the burden of

proving the applicability of claimed exemptions. Am. Civil Liberties Union (ACLU) v. U.S. Dep’t

of Defense,

(D.C. Cir. 2011). An agency is entitled to summary judgment “if

no material facts are in dispute and if it demonstrates ‘that each document that falls within the class

requested either has been produced . . . or is wholly exempt from [FOIA’s] inspection

requirements.’” Students Against Genocide v. U.S. Dep’t of State,

(D.C. Cir.

2001) (quoting Goland v. CIA,

(D.C. Cir. 1978)). “Ultimately, an agency’s

justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’”

ACLU,

(citation omitted).

Even if the nonmoving party fails to respond to the motion for summary judgment, “a

motion for summary judgment cannot be ‘conceded’ for want of opposition.” Winston & Strawn,

. The burden is always on the movant to demonstrate why summary judgement is

warranted, and “[t]he nonmoving party’s failure to oppose summary judgment does not shift that

5 burden.”

(quoting Grimes v. District of Columbia,

(D.C. Cir. 2015)). Pursuant

to Federal Rule of Civil Procedure 56(e)(1), the district court can “give a party who has failed to

address a summary judgment movant’s assertions of fact ‘an opportunity to properly support or

address’ the fact.” Grimes,

(quoting Fed. R. Civ. P. 56(e)(1)). However, if the

nonmovant fails to respond to a movant’s factual submission and then fails to take advantage of

the opportunity to rectify that failure, the district court may consider the facts undisputed for

purposes of the motion. Winston & Strawn,

; see Grimes,

.

ANALYSIS

I. EOUSA’S SEARCH FOR REQUESTED DOCUMENTS WAS ADEQUATE UNDER FOIA

An agency only fulfills its FOIA obligations if it can demonstrate beyond a material doubt

that its search was “reasonably calculated to uncover all relevant documents.” Weisberg v. U.S.

Dep’t of Justice,

(D.C. Cir. 1983). To prevail in a FOIA action, the agency

must show that it has 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 the Army,

(D.C. Cir. 1990). “The question is not whether there

might exist any other documents possibly responsive to the request, but rather whether the search

for those documents was adequate.” Steinberg v. U.S. Dep’t of Justice,

(D.C.

Cir. 1994) (citation omitted). Adequacy is judged by a standard of reasonableness. Weisberg v.

U.S. Dep’t of Justice,

(D.C. Cir. 1984). The agencies are not required to

search every record system; rather, a search may be reasonable if it includes all systems “that are

likely to turn up the information requested.” Ryan v. FBI,

(D.D.C. 2016)

(quoting Oglesby,

).

6 The agency may meet its burden and show that the search was adequate by submitting

reasonably “detailed and non-conclusory” affidavits or declarations that are submitted in good

faith, SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991) (citation omitted), and

an index of the information withheld, Vaughn, 484 F.2d at 827–28. For an affidavit to be

“reasonably detailed,” it must “set[] forth the search terms and the type of search performed, and

aver[] that all files likely to contain responsive materials (if such records exist) were searched.”

Oglesby,

. Agency affidavits that “do not denote which files were searched or by

whom, do not reflect any systematic approach to document location, and do not provide

information specific enough to enable [the plaintiff] to challenge the procedures utilized” are

insufficient to support summary judgment. Weisberg v. U.S. Dep’t of Justice,

(D.C. Cir. 1980).

EOUSA submitted a declaration from David Luczynski, an EOUSA Attorney Advisor, in

order to meet its burden with respect to the adequacy of its search. See Luczynski Decl. ¶ 1.

Luczynski’s declaration states that EOUSA evaluated plaintiff’s FOIA request and, because each

United States Attorney’s Office maintains the case files for criminal matters prosecuted by that

office, it forwarded the request to EOUSA’s FOIA contact for the USAO-MD. Id. ¶ 10. The FOIA

contact conducted a systematic search for records using the search term “Santos Maximino-

Garcia” 1 and the case number to determine the location of all files relating to plaintiff. Id. The

FOIA contact used the “LIONS” system, the computer system used by United States Attorney’s

Offices “to track cases and to retrieve files pertaining to cases and investigations.” Id. With this

1 Plaintiff’s last name does not appear to include a hyphen in any of the other documents filed in this case, which theoretically could suggest that the search terms were inadequate. But see Judicial Watch v. U.S. Dep’t of State, Civ. Action No. 12-893 (JDB),

, at *11 (D.D.C. Sept. 6, 2017) (rejecting argument that a search was inadequate because the State Department used variants of Anwar Aulaqi’s last name rather than his full name). However, plaintiff does not allege that the search terms were inadequate, and it appears that EOUSA found plaintiff’s criminal case files without difficulty.

7 system, “the user can access databases which can be used to retrieve information based on a

defendant’s name, the USAO number (United States’ Attorney’s Office internal administrative

number), and the district court case number for any court cases.”

According to Luczynski,

“[a]ll documents responsive to plaintiff’s FOIA request would have been located in the United

States Attorney’s office for the District of Maryland” and “[t]here are no other records systems or

locations within EOUSA in which other files pertaining to plaintiff were maintained.”

Luczynski’s affidavit provides sufficient information for EOUSA’s search process to be

challenged: it indicates who conducted the search, specifies the search terms used, and describes

the type of search conducted. See Weisberg,

; Oglesby,

. The

information in the affidavit indicates that EOUSA took a sensible and systematic approach to

plaintiff’s FOIA request. Plaintiff has not alleged that any of the information EOUSA provided

was inaccurate, or that its process was inadequate. Accordingly, because EOUSA ensured that all

systems “likely to contain records responsive to plaintiff’s request were searched,” Luczynski

Decl. ¶ 11, and submitted a reasonably detailed declaration describing the search, the search was

adequate.

II. THE RESPONSIVE DOCUMENTS WERE PROPERLY WITHHELD PURSUANT TO FOIA’S STATUTORY EXEMPTIONS.

After the search is deemed adequate, the agency must show that withheld materials fall

within a FOIA statutory exemption. Leadership Conference on Civil Rights v. Gonzales,

(D.D.C. 2005). Here, each agency submitted a declaration and Vaughn index

addressing all responsive documents withheld pursuant to a FOIA exemption. See Luczynski

Decl. ¶¶ 13–29 and EOUSA Vaughn Index; Cunningham Decl. ¶¶ 10–25 and DOJ Vaughn Index;

Boucher Decl. ¶¶ 16–37 and ATF Vaughn Index; Riley Decl. ¶¶ 25–37 and ICE Vaughn Index.

8 Between them, the agencies invoked seven different FOIA exemptions that they claimed apply to

all or some of the responsive documents. The Court will address each in turn.

A. FOIA Exemption 6

EOUSA, DOJ, ICE, and ATF withheld records pursuant to FOIA Exemption 6, which

exempts from disclosure “personnel and medical files and similar files the disclosure of which

would constitute a clearly unwarranted invasion of personal privacy.”

(b)(6). To

determine whether Exemption 6 applies, a court must first determine whether the responsive

records are personnel, medical, or similar files. See Multi Ag Media LLC v. U.S. Dep’t of Agric.,

(D.C. Cir. 2008). If so, the court must then decide whether the disclosure of

the third-party information “would constitute a clearly unwarranted invasion of personal privacy.”

This requires the court “to balance the privacy interest that would be compromised by

disclosure against any public interest in the requested information.”

“Congress’ primary purpose in enacting Exemption 6 was 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.,

(1982). Accordingly, Exemption 6 is

designed to cover “detailed Government records on an individual which can be identified as

applying to that individual.”

. Courts have applied this exemption broadly, holding

specifically that Exemption 6 covers “such items as a person’s name, address, place of birth,

employment history, and telephone number.” Judicial Watch, Inc. v. U.S. Dep’t of the Navy,

(D.D.C. 2014).

EOUSA, DOJ, ICE, and ATF each invoked Exemption 6 for all records “pertaining to third

party individuals to protect their personal privacy interests.” Luczynski Decl. ¶ 20. EOUSA’s

Vaughn Index lists, for example, a document withheld under Exemption 6 because it contains

9 names and identifying information of victims and suspects. See, e.g., EOUSA Vaughn Index, Doc.

3; see also DOJ Vaughn Index, Doc. 1 (redacting the names and identifying information of lower-

level government employees and other third parties who provided information to the Department

of Justice during the course of criminal investigations and prosecutions); ICE Vaughn Index, Doc.

2 (withholding documents that contain the first and last names, addresses, phone numbers, and fax

numbers of special agents); ATF Vaughn Index, Doc. 1 (withholding, among other things, the

names and identifying information of ATF Special Agents, RAGE Task Force Officers, Local Law

Enforcement Officers and USAO personnel, suspects in the investigation, and confidential

informants). Given the broad application of Exemption 6, this information falls within Exemption

6’s “personnel file” category.

The Court must therefore balance the privacy interests and public interest at stake. “The

balancing analysis for FOIA Exemption 6 requires that we first determine whether disclosure of

the files ‘would compromise a substantial, as opposed to de minimis, privacy interest,’ because

‘[i]f no significant interest is implicated . . . FOIA demands disclosure.’” Multi Ag Media LLC,

(quoting Nat’l Ass’n of Retired Fed. Emps. v. Horner,

(D.C.

Cir. 1989)). A “substantial privacy interest exists in avoiding embarrassment, retaliation, or

harassment and intense scrutiny by the media that would likely follow disclosure.” Judicial Watch,

Inc. v. U.S. Dep’t of State,

(D.D.C. 2012); see also Horner,

(“[T]he privacy interest of an individual in avoiding the unlimited disclosure of his or her name

and address is significant[.]”). Then the Court must “address the question whether the public

interest in disclosure outweighs the individual privacy concerns.” Multi Ag Media LLC,

. The basic purpose of FOIA is for citizens to be informed about what their government is

up to.

. Accordingly, information that “sheds light on an agency’s performance of its

10 statutory duties” is in the public interest. U.S. Dep’t of Justice v. Reporters Comm. for Freedom

of Press,

(1989).

Here, each agency reasonably determined that the privacy interests at stake were

substantial. The agencies withheld records or portions of records because the names and

identifying information of third-party individuals permeated those documents, and disclosure

could be expected to cause “harassment, embarrassment and/or unsolicited publicity which would

clearly constitute an unwarranted invasion of their personal privacy.” Cunningham Decl. ¶ 16; see

Luczynski Decl. ¶ 19; Riley Decl. ¶ 29; Boucher Decl. ¶ 22. This claim is especially significant

in light of plaintiff’s involvement in a RICO investigation by the ATF Regional Area Gang

Enforcement (RAGE) Unit Task Force, which was established to address the violent crimes carried

out by the MS-13 street gang. See Boucher Decl. ¶ 11; see also id. ¶ 23 (“ATF determined that

the disclosure of this information could reasonably be expected to constitute an unwarranted

invasion of these third parties’ privacy, because being associated with ATF’s criminal

investigation into Plaintiff’s unlawful actions carries a stigmatizing and negative connotation.”).

The agencies noted that the documents withheld included a wide range of identifying personal

information, and they raised legitimate concerns about retaliatory actions that could be taken

against the law enforcement agents and cooperating witnesses whose information the agencies

wish to shield under Exemption 6—particularly given the violent tendencies of the MS-13 gang—

and about maintaining the confidentiality of witnesses who cooperated with the promise that their

identities would remain private. See id. ¶¶ 23–25; Cunningham Decl. ¶¶ 16, 18; Luczynski Decl.

¶ 18; Riley Decl. ¶¶ 28–31. All of these considerations weigh strongly against disclosure. See

U.S. Dep’t of State v. Ray,

(1991).

11 These individual privacy interests are not outweighed by any public interest in disclosure.

Any such interest must be rooted in “the basic purpose of the Freedom of Information Act ‘to open

agency action to the light of public scrutiny.’” U.S. Dep’t of Air Force v. Rose,

(1976). The agencies assert that there is little public interest in the disclosure of personal

information about third parties involved in ATF’s investigation. See Riley Decl. ¶ 36 (“The

disclosure of this [personal identifying information] serves no public benefit and would not assist

the public in understanding how the agency is carrying out its statutory responsibility.”); see also

Cunningham Decl. ¶ 18 (“[T]he Criminal Division balanced the significant personal privacy

interests of a third-party confidential source in not having their name and identifying information

disclosed against the negligible public interest in the disclosure of their identity.”). The Court

agrees. While information regarding the RAGE Unit Task Force might shed light on ATF’s

operations against a prominent gang, the documents withheld under Exemption 6 contain a wide

range of confidential information about individuals involved with the Task Force’s investigations.

“[R]arely does a public interest outweigh an individual’s privacy interest when law enforcement

information pertaining to an individual is sought,” Martin v. Dep’t of Justice,

(D.C. Cir. 2007), and this is not one of those rare instances.

In sum, because the disclosure of the third-party identifying information would “constitute

a clearly unwarranted invasion of personal privacy,”

(b)(6), and disclosure of the

information would serve little public benefit, the agencies’ reliance on Exemption 6 in withholding

responsive documents was appropriate.

B. FOIA Exemption (7)(C)

EOUSA, DOJ, ICE, and ATF each withheld records pursuant to FOIA Exemption 7(C).

This provision exempts from disclosure “records or information compiled for law enforcement

12 purposes, but only to the extent that the production of such law enforcement records or information

. . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

(b)(7)(C). Where disclosure of information compiled for law enforcement purposes

“could reasonably be expected to constitute an unwarranted invasion of personal privacy,”

“such information can be withheld if the privacy interests outweigh the public interest in

disclosure.” King v. U.S. Dep’t of Justice,

(D.D.C. 2017).

“[P]rivacy interests are particularly difficult to overcome when law enforcement

information regarding third parties is implicated.” Martin,

. This Court has held

that, under Exemption 7(C), the disclosure of names and other identifying information of third

parties that could lead to the individuals becoming “targets of harassment and humiliation” is a

“‘legitimate interest’ weighing against disclosure.” King,

(quoting Lesar

v. U.S. Dep’t of Justice,

(D.C. Cir. 1980)); see also SafeCard Servs., Inc.,

(“There is little question that disclosing the identity of targets of law-enforcement

investigations can subject those identified to embarrassment and potentially more serious

reputational harm.”).

Once the government has shown that the privacy concerns addressed by Exemption 7(C)

are present, the burden shifts to the requester to demonstrate that the “public interest sought to be

advanced is a significant one, an interest more specific than having the information for its own

sake.” Favish,

. The D.C. Circuit has categorically held that, “unless access to the

names and addresses of private individuals appearing in files within the ambit of Exemption 7(C)

is necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal

activity, such information is exempt from disclosure.” SafeCard Servs., Inc.,

.

13 Here, EOUSA, DOJ, ICE, and ATF withheld law enforcement records under Exemption

7(C). See Luczynski Decl. ¶ 21 and EOUSA Vaughn Index; Cunningham Decl. ¶¶ 15–16 and DOJ

Vaughn Index; Boucher Decl. ¶ 18 and ATF Vaughn Index; Riley Decl. ¶ 26 and ICE Vaughn

Index. The privacy interests relating to these law enforcement records claimed by each agency

outweigh the public interest in disclosure. As described above in connection with Exemption 6,

the agencies each assert a strong privacy interest against disclosure: the release of documents

compiled for law enforcement purposes could subject individuals to “harassment, harm, or

exposure to unwanted and/or derogatory publicity and interferences.” Luczynski Decl. ¶ 22.

The public interest in favor of disclosure, meanwhile, is slight. In his complaint, plaintiff

asserts that the prosecution was “deliberately ignorant” of Cruz’s criminal history during his tenure

as a cooperating witness, because it “fail[ed] to discover that its principal witness had committed

a rape and perjured himself during Plaintiff’s 2008 trial to the extent that his testimony purposely

omitted this offense from any discussion as to his criminal history.” Compl. at 5–6. Plaintiff

therefore claims, citing Marino v. Drug Enforcement Administration,

, that this

purported “government impropriety” creates a significant public interest in the release of

information about Cruz, Compl. at 7. This claim is unpersuasive. In Marino, the court held that

“Marino has presented evidence indicating that the Government ‘might’ have been negligent in

failing to know that its key witness was lying to the jury and seriously understating his involvement

in the [drug ring] conspiracy.”

; see also

at 154–55 (citing reasons why

the government should have been aware that the primary witness’s role in the drug organization

was more extensive than he represented, and holding that the government acted either negligently

in failing to cross-check his story against the government’s broader investigation of the drug

organization or improperly by presenting his testimony despite knowing it was false).

14 Here, by contrast, plaintiff offers no evidence as to why the prosecution should have been

aware of Cruz’s 2003 rape. See Compl. at 5. Plaintiff’s argument is particularly unconvincing in

light of the fact that Cruz was not convicted of rape until 2013, five years after plaintiff’s trial.

Accordingly, Plaintiff has not satisfied his burden of demonstrating that the public interest in

disclosure outweighs the privacy interests at stake because “there is no such evidence of agency

misconduct.” SafeCard Servs, Inc.,

.

C. FOIA Exemption (7)(D)

EOUSA, DOJ, and ATF each withheld records pursuant to FOIA Exemption 7(D), which

allows agencies to withhold “records or information compiled for law enforcement purposes,” but

only to the extent that the withheld information “could reasonably be expected to disclose the

identity of a confidential source, . . . and, in the case of a record or information compiled by

criminal law enforcement authority in the course of a criminal investigation . . . , information

furnished by a confidential source.”

(b)(7)(D). A source is confidential for purposes

of this exemption where “the source provided information under an express assurance of

confidentiality.” Williams v. FBI,

(D.C. Cir. 1995) (quoting U.S. Dep’t of

Justice v. Landano,

(1993)).

EOUSA, DOJ, and ATF each invoked Exemption 7(D) in order to protect the identities of

confidential informants who “provid[ed] information to law enforcement officers with an express

promise of confidentiality.” See, e.g., EOUSA Vaughn Index, Doc. 4; see also Boucher Decl. ¶¶

27–30; Cunningham Decl. ¶¶ 19–23. DOJ, for example, asserted that it “withheld documents

where the release of information contained within those records could clearly identify a third-party

confidential source.” Cunningham Decl. ¶ 23; see also Boucher Decl. ¶ 30 (“If this information

were released, the source or sources of information would be identified to the Plaintiff.”). The

15 confidential information was provided “during the course of a legitimate law enforcement

investigation” into the activities of MS-13. Williams,

. The agencies thus properly

invoked Exemption 7(D).

D. FOIA Exemption (7)(E)

ICE and ATF both withheld records pursuant to FOIA Exemption 7(E), which likewise

exempts from disclosure “records or information compiled for law enforcement purposes,” when

production “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.”

(b)(7)(E). The D.C. Circuit has recognized that “Exemption 7(E) sets a relatively low bar

for the agency to justify withholding.” Blackwell v. FBI,

(D.C. Cir. 2011). The

agency need only demonstrate “logically how the release of the requested information might create

a risk of circumvention of the law.”

Here, ICE and ATF have made that demonstration. Stephanie Boucher, Chief of the

Disclosure Division at ATF, explained that “[a]lthough the use of recording devices and the use

of [Confidential Informants/Confidential Sources] are known law enforcement techniques,

specific information relating to the types of recording devices used, the parameters used to

determine whether a device or [Confidential Informants/Confidential Sources] will be used, and

how law enforcement employs those techniques could reveal information that would result in

circumvention of the law.” Boucher Decl. ¶ 33. If this “sensitive law enforcement information”

were released, it “would jeopardize the future use of the investigative technique(s) or minimize the

effectiveness of those techniques.”

Similarly, Matthew Riley, Acting Deputy FOIA Officer at

ICE, explained that “the law enforcement techniques redacted involve cooperative arrangements

16 between ICE and other agencies,” the disclosure of which “could adversely affect future

investigations by giving potential subjects of investigations the ability to anticipate the

circumstances under which such techniques could be employed . . . and identify such techniques

as they are being employed in order to either obstruct the investigation or evade detection from

law enforcement officials.” Riley Decl. ¶ 37. These statements logically explain how releasing

the content of these documents could help criminals circumvent the law, and that “suffices here to

justify invocation of Exemption 7(E).” Blackwell,

.

E. FOIA Exemption (7)(F)

EOUSA, DOJ, and ATF each withheld records pursuant to FOIA Exemption 7(F), which

exempts from disclosure “records or information compiled for law enforcement purposes, but only

to the extent that the production of such law enforcement records or information . . . could

reasonably be expected to endanger the life or safety of any individual.”

(b)(7)(F).

The language in this exemption is “very broad,” Pub. Emps. for Envtl. Responsibility v. U.S.

Section, Int’l Boundary & Water Comm’n,

(D.C. Cir. 2014), and “has been

interpreted to apply to names and identifying information of law enforcement officers, witnesses,

confidential informants and other third persons who may be unknown to the requester,” Berard v.

Fed. Bureau of Prisons,

(D.D.C. 2016). In addition, “[d]isclosure need

not definitely endanger life or physical safety; a reasonable expectation of endangerment suffices.”

Pub. Emps. for Envtl. Responsibility,

(emphasis in original). Courts generally

defer to an agency’s predictions of harm. See

Here, EOUSA explained that Exemption 7(F) was asserted “to protect the identities

(including identifying information) of confidential informants providing information to law

enforcement officers with an express promise of confidentiality.” E.g., EOUSA Vaughn Index,

17 Doc. 15. If these identities were released, the individuals would be subject to “retaliation,

including murder, by [a] violent criminal organization guilty of murder, attempted murder, arson,

and assault.” Id.; see also Cunningham Decl. ¶ 25 (“In light of the detailed information the

confidential source provided to federal law enforcement, it is reasonable to expect that release of

the confidential source identity would place him/her at great risk.”). ATF’s Chief of the Disclosure

Division, furthermore, explained that “Plaintiff served as a fairly high level MS-13 gang member”

and “[m]embers of MS-13 frequently engage in criminal activity, including, but not limited to,

murders, assault, robberies, kidnappings, and witness intimidation.” Boucher Decl. ¶ 35. “Based

on the violent nature of the MS-13 street gangs . . . ATF asserted Exemption 7(F) to protect the

identities and identifying information of all third parties involved in this case.” Id. ¶ 37.

“Deferring to the agency’s prediction of harm that could occur to individuals who provided

[the agency] with information,” Sandoval v. U.S. Dep’t of Justice, No. 16-1013 (ABJ),

, at *13 (D.D.C. Nov. 2, 2017), the Court concludes that EOUSA, DOJ, and ATF have

sufficiently justified their invocations of Exemption 7(F).

F. FOIA Exemption (5)

EOUSA and DOJ each withheld records pursuant to FOIA Exemption 5, which exempts

from disclosure “inter-agency . . . memorandums or letters that would not be available by law to

a party other than an agency in litigation with the agency.”

(b)(5). If a document

requested pursuant to FOIA would normally be subject to disclosure in the civil discovery context,

“it must also be disclosed under FOIA.” Burka v. U.S. Dep’t of Health & Human Servs.,

, 516 (D.C. Cir. 1996). This exemption thus protects—among other things—pre-decisional

deliberative memoranda, attorney-client communications, and attorney work product, which are

also privileged from civil discovery. Id.

18 Here, EOUSA and DOJ invoked Exemption 5 for documents that constitute attorney work-

product. See Luczynski Decl. ¶¶ 14–17; Cunningham Decl. ¶¶ 11–12. EOUSA explained that the

records withheld pursuant to Exemption 5 included, among other things, email communications of

attorneys involved in plaintiff’s criminal case and draft letters and memoranda. See EOUSA

Vaughn Index. EOUSA concludes that these documents are therefore exempt because they

“contain deliberations concerning possible strategies as they relate to the prosecution of the

plaintiff” and “were prepared by, or at the request of an attorney, and made in anticipation of, or

during litigation of plaintiff’s criminal case.” Luczynski Decl. ¶ 16. DOJ withheld certain

documents that were “in the form of applications and worksheets which pertain to a third-party

confidential source.” Cunningham Decl. ¶ 12. “[B]ecause these applications and worksheets

involve and contain the thought processes, personal evaluations, litigation strategies and positions

of government attorneys and their agents,” DOJ asserts that “they are clearly attorney work-

product under Exemption 5.” Id.

The documents withheld are attorney work product of the sort “routinely protected in

discovery,” and therefore “fall[] within the reach of Exemption 5.” Burka, 87 F.3d at 516. Hence,

the agencies’ use of Exemption 5 was proper.

G. FOIA Exemption (3)

EOUSA withheld a document pursuant to FOIA Exemption 3, which states that FOIA’s

disclosure obligation does not apply to matters that are “‘specifically exempted from disclosure by

[another] statute,’ if the statute ‘(i) requires that the matters be withheld from the public in such a

manner as to leave no discretion on the issue,’ or ‘(ii) establishes particular criteria for withholding

or refers to particular types of matters to be withheld.’” Labow v. U.S. Dep’t of Justice,

(D.C. Cir. 2016) (quoting

(b)(3)(A)). Federal Rule of Criminal Procedure

19 6(e), which bars disclosure of matters occurring before a grand jury, is “a qualifying statute under

Exemption 3.”

While there is no “per se rule against disclosure of any and all information

which has reached the grand jury chambers,” “the touchstone is whether disclosure would tend to

reveal some secret aspect of the grand jury’s investigation,” such as “the identities of witnesses or

jurors.” Senate of the Commonwealth of Puerto Rico ex rel. Judiciary Comm. v. U.S. Dep’t of

Justice,

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

EOUSA invoked Exemption 3 in connection with a transcript of a conversation between

third-party individuals, which described detailed criminal activity, including names of individuals,

because “the release of the name of the witness or other contextual information that could lead to

the derivation of the name would compromise the integrity of the grand jury system.” Luczynski

Decl. ¶ 13; EOUSA Vaughn Index, Doc. 16. As disclosure of the document in question “would

tend to reveal . . . the identities of [grand jury] witnesses,” Senate of Puerto Rico,

(internal quotation marks omitted), this document was properly withheld under Exemption 3.

III. SEGREGABILITY

FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to

any person requesting such record after deletion of the portions which are exempt.”

(b). “Agencies are entitled to a presumption that they complied with the obligation to

disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv.,

(D.C. Cir. 2007). Here, EOUSA, DOJ, ICE, and ATF each examined all responsive documents

“page-by-page” and determined that “no reasonably segregable non-exempt information was

withheld from plaintiff.” Luczynski Decl. ¶ 31; see also Boucher Decl. ¶ 38 (“All of the documents

provided by EOUSA to ATF pertain to third parties. . . . A Disclosure Specialist reviewed the

materials responsive to Plaintiff’s FOIA request and determined that no documents could be

20 reasonably segregated from exempt information and produced to Plaintiff.”); Cunningham Decl. ¶

26 (“Upon review of the records responsive to plaintiff’s request, the Criminal Division has also

concluded that there is no segregable non-exempt information.”); Riley Decl. ¶ 39 (“I have

reviewed each record line-by-line to identify information exempt from disclosure or for which a

discretionary waiver of exemption could be applied.”).

Plaintiff “has not presented sufficient evidence”—or, indeed, any evidence—“to rebut th[e]

presumption” that these statements correctly characterize the documents at issue and that the

agencies have complied with their obligation to disclose segregable material. Hodge v. FBI,

(D.C. Cir. 2013). Hence, the agencies properly withheld records under FOIA

Exemptions 3, 5, 6, 7(C), 7(D), 7(E), and 7(F), and appropriately concluded that no non-exempt

material was reasonably segregable. 2

CONCLUSION

For the foregoing reasons, EOUSA’s motion for summary judgment will be granted. A

separate order has been issued on this date.

/s/ JOHN D. BATES United States District Judge Dated: March 14, 2018

2 EOUSA, ATF, and ICE also invoked the Privacy Act, 5 U.S.C. § 552a(j)(2), to justify withholding responsive documents in their possession. Because plaintiff does not bring any claims under the Privacy Act, the Court need not address the Act. However, “the Court notes that all of the records in this case appear to originate within record systems that have been exempted from the Privacy Act.” Parker v. U.S. Immigration & Customs Enf’t,

, 98 n.8 (D.D.C. 2017); see

(a)(1); Privacy Act of 1974; Department of Homeland Security U.S. Immigration and Customs Enforcement–009 External Investigations System of Records,

(Jan. 5, 2010); Boucher Decl. ¶¶ 7–9; Luczynski Decl. ¶ 12; Riley Decl. ¶¶ 15–21. Thus, EOUSA, ATF, and ICE were likely “within [their] right to withhold documents identified in [these] database[s].” Campbell v. United States Dep’t of Justice,

(D.D.C. 2015).

21