UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THADDEUS VASKAS,

Plaintiff,

v. Civil Action No. 21-1447 (TSC) U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff, proceeding pro se, has sued the U.S. Department of Homeland Security

(“DHS”) and U.S. Immigration and Customs Enforcement (“ICE”) under the Freedom of

Information Act (“FOIA”). See Am. Compl., ECF No. 3. He claims Defendants unlawfully

withheld records he requested under FOIA regarding their involvement in his federal criminal

conviction. Id. ¶¶ 2, 4. Defendants have moved for summary judgment. ECF No. 12. For the

reasons set forth below, the court will GRANT Defendants’ motion.

I. BACKGROUND

In July 2020, Plaintiff submitted a FOIA request to DHS, seeking information regarding

its “involvement in [his] federal conviction in United States v[.] Thaddeus Vaskas, Eastern

District of Pennsylvania, Crim Case No. 12-128.” Compl. ¶ 4; see United States v. Vaskas, No.

CR 12-128,

at *1 (E.D. Pa. Mar. 31, 2016) (noting that Plaintiff was

convicted of one count of possession of child pornography and sentenced to 168 months of

incarceration followed by fifteen years of supervised release), aff’d,

(3d Cir.

2017). He narrowed that request after DHS asked him to be “more specific and detailed.”

Page 1 of 8 Compl. ¶ 5. Upon “learning that neither of the Defendants” were “working toward fulfilling

[his] FOIA request, Plaintiff filed an “Administrative Appeal” and was informed that his request

was “in the queue to be processed by an analyst.” Id. ¶ 6. He now seeks a declaration that

Defendants violated FOIA by failing to produce records responsive to his request, and an order

that they do so immediately. Id. at 4.

By sworn declaration, Defendants state that upon receiving the request, they “conducted a

manual search for physical files and an electronic search for records” on computer hard drives

and email folders. Declaration of Lynnea Schurkamp ¶¶ 26–27, ECF No. 12-3 (“Schurkamp

Decl.”). The search identified 537 pages of potentially responsive records, of which Defendants

produced 389 pages, subject to withholdings pursuant to FOIA Exemptions (b)(3), (b)(5), (b)(6),

(b)(7)(C), and (b)(7)(E).” Id. ¶¶ 28, 30; see also Vaughn Index, ECF No. 12-4. In moving for

summary judgment, Defendants contend that their search was adequate, that they properly

invoked FOIA exemptions for withholding certain responsive records, and that they complied

with FOIA’s segregability requirement. See Memo. in Support of Defs.’ Mot. for Summary

Judgment, ECF No. 12-2.

II. LEGAL STANDARD

In FOIA litigation, as in all civil cases, summary judgment is appropriate only when the

pleadings and declarations demonstrate that there is no genuine issue of material fact, and the

moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v.

Liberty Lobby, Inc.,

(1986). “FOIA provides a ‘statutory right of public

access to documents and records’ held by federal government agencies.” Citizens for Resp. &

Ethics in Wash. v. U.S. Dep’t of Justice,

(D.D.C. 2009) (quoting Pratt

v. Webster,

(D.C. Cir. 1982)). The Act requires federal agencies to comply

with requests to make their records available to the public unless such “information is exempted Page 2 of 8 under [one of nine] clearly delineated statutory [exemptions].”

(internal quotation marks

omitted); see also

(a)–(b).

In reviewing a motion for summary judgment under FOIA, the court must view the facts

in the light most favorable to the requester. See Weisberg v. U.S. Dep’t of Justice,

(D.C. Cir. 1984). Summary judgment in FOIA cases may be based solely on

information provided in an agency’s supporting affidavits or declarations if they are “relatively

detailed and nonconclusory.” SafeCard Servs., Inc. v. U.S. Sec. & Exch. Comm’n,

(D.C. Cir. 1991) (internal quotation and citation omitted). These declarations are

“accorded a presumption of good faith, which cannot be rebutted by purely speculative claims

about the existence and discoverability of other documents.”

(internal quotation and citation

omitted).

“To successfully challenge an agency’s showing that it complied with the FOIA, the

plaintiff must come forward with specific facts demonstrating that there is a genuine issue with

respect to whether the agency has improperly withheld . . . records.” Span v. U.S. Dep’t of

Justice,

(D.D.C. 2010) (citing U.S. Dep’t of Justice v. Tax Analysts,

(1989)) (quotation marks omitted). By corollary, “[a] non-moving party’s

complete failure to come forward with evidence to demonstrate the existence of a genuine issue

of material fact constitutes a ‘reason’ for the grant of summary judgment under [Rule 56(e)].”

Smith v. U.S. Dep’t of Justice,

(D.D.C. 2013).

III. ANALYSIS

Plaintiff does not dispute that Defendants’ search was adequate, but rather contends that

they wrongfully invoked FOIA’s exemptions and failed to segregate non-exempt information.

See Pl.’s Opp’n to Defs.’ Mot. for Summary Judgment, ECF No. 16 (“Opp’n to MSJ”). Both

contentions fail. Page 3 of 8 A. Exemption 3

Exemption 3 covers records that another statute specifically prohibits disclosing.

Here, Defendants invoked the Federal Victims’ Protection & Rights Act, which prohibits

disclosure of “documents that disclose the name or any other information concerning a child,”

(d), and therefore “qualifies as an Exemption 3 withholding statute,” Rodriguez v.

U.S. Dep’t of Army,

(D.D.C. 2014). Defendants aver that the records

withheld under Exemption 3 “contain[] sensitive information pertaining to child victims involved

in criminal proceedings” that “could potentially be used, in combination with other released

information, to identify the child victims.” Schurkamp Decl. ¶ 34; see also, e.g., Vaughn Index

at 1–2. Plaintiff presents no facts to disturb that conclusion, arguing only that he did “not request

any information involving the name or other information concerning a child.” Opp’n to MSJ at

7. But Defendants’ declaration establishes that some of their records related to his child

pornography conviction—and therefore within the scope of his request—included statutorily

protected information about children, regardless of whether Defendant specifically requested that

information. That is sufficient to withhold those records.

B. Exemption 5

Defendants also properly invoked the deliberative process privilege under FOIA’s

Exemption 5 to withhold “internal communications related to the investigation, case planning,

and surveillance of Mr. Vaskas.” Schurkamp Decl. ¶ 36. The privilege “protects agency

documents that are both predecisional and deliberative,” Judicial Watch, Inc. v. Food & Drug

Admin.,

(D.C. Cir. 2006), to promote “open and frank discussion among”

government decisionmakers, U.S. Dep’t of Interior v. Klamath Water Users Protective Ass’n,

(2001). “[A] decision as to whether or not to prosecute someone,” along with “the

information-gathering and deliberative process that produces the decision is precisely the type of Page 4 of 8 material to be protected as pre-decisional under Exemption 5.” Paisley v. Cent. Intelligence

Agency,

(D.C. Cir. 1983), opinion vacated in part,

(D.C. Cir.

1984) (unrelated to Exemption 5 holding). Plaintiff objects that “some records cannot qualify as

intra-or-inter-agency memoranda” and suggests that they may be “communications with a

nonagency third party.” Opp’n to MSJ at 8. But he does not cite any evidence to support either

assertion, and so his “purely speculative claims” do not rebut the presumption of good faith and

accurate descriptions afforded to Defendants’ declaration. SafeCard Servs., Inc.,

. There is accordingly no dispute of material fact with respect to Exemption 5.

C. Exemptions 6 and 7(C)

There is likewise no basis for disputing that Defendants lawfully withheld records under

FOIA Exemptions 6 and 7(C). Those exemptions protect information from “personnel and

medical files and similar files the disclosure of which would constitute a clearly unwarranted

invasion of personal privacy,”

(b)(6), and information “compiled for law

enforcement purposes” if a release of the records or information “could reasonably be expected

to constitute an unwarranted invasion of personal privacy,”

§ 552(b)(7)(C). Defendants’

declaration states that they applied these exemptions to withhold two categories of information:

(1) “the names, identification codes, code names, phone numbers, and signatures of federal law

enforcement officers and other government employees”; and (2) the “personally identifiable

information [“PII”] of third parties, to include names, case numbers, social security numbers,

alien numbers, addresses, e-mail addresses, phone numbers, VIN numbers, seizure numbers,

dates of birth, Subject ID numbers, and Event numbers within ICE’s documents.” Schurkamp

Decl. ¶ 43.

Exemptions 6 and 7(C) cover both categories of withheld records. Under Exemption

7(C), the information was compiled for law enforcement purposes because it consists either of Page 5 of 8 records regarding law enforcement officers themselves or records compiled by ICE in the course

of carrying out its enforcement of U.S. immigration laws. See Thomas v. U.S. Dep’t of Justice,

(D.D.C. 2008) (records pertaining to investigation and prosecution

were compiled for law enforcement purposes). And that information could constitute an

unwarranted invasion of personal privacy. Law enforcement officers and third parties alike

could become targets for harassment, embarrassment, annoyance, or identity theft were their PII

publicly disclosed. See Schurkamp Decl. ¶¶ 44–46. By contrast, Plaintiff has identified no

public interest that would outweigh those privacy invasions, much less a “significant” one. Boyd

v. U.S. Dep’t of Justice,

(D.C. Cir. 2007) (citing Nat’l Archives & Recs.

Admin. v. Favish,

(2004)). “[S]omething outweighs nothing every time.”

Fitzgibbon v. Cent. Intelligence Agency,

(D.C. Cir. 1990) (formatting

modified).

The Exemption 6 analysis is similarly straightforward. Its reference to “personnel and

medical files and similar files” is interpreted broadly, covering all “Government records on an

individual which can be identified as applying to that individual.” U.S. Dep’t of State v.

Washington Post Co.,

(1982). And for the reasons already explained, the

balance of privacy considerations and the public interest tips in favor of nondisclosure. Indeed,

Defendants’ declaration explains that they deliberately carried out that balancing before deciding

to withhold some of the requested records. Schurkamp Decl. ¶¶ 44–46, 48–49. Lacking any

evidence that Defendants acted in bad faith, or that the public and private interests at issue are

otherwise in dispute, the court concludes that Defendants properly invoked Exemption 6.

Plaintiff’s counterarguments are unavailing. First, he argues that the “identity and

involvement” of three DHS Special Agents has already been disclosed, so their information is no

Page 6 of 8 longer exempt. Opp’n to MSJ at 8. But he cites no evidence that their information is in the

public domain, and in any event, disclosure “elsewhere [does not] cause[] [one’s] substantial

privacy interests under exemption 7(C) to be diminished.” Fitzgibbon,

; see also

U.S. Dep’t of Just. v. Reps. Comm. For Freedom of Press,

, 762–65 (1989)

(rejecting the “cramped notion of personal privacy” that an individual has no privacy interest in

information “previously disclosed to the public”). Second, Plaintiff repeats his assertion that he

did not request any PII. Again, however, that assertion ignores the fact that some records

otherwise responsive to his request might incidentally contain PII and therefore still need to be

withheld—at least in part—on that basis. See supra Section III.A; see also, e.g., Vaughn Index

at 1–3 (withholding document in part because it contains law enforcement PII). As a result, there

is no dispute of material fact that Defendants lawfully relied on Exemptions 6 and 7(c) to

withhold records containing PII.

D. Segregability

Finally, Defendants also complied with their statutory duty to release “[a]ny reasonably

segregable portion” of the requested records.

(b). Under FOIA, they bear the

burden of demonstrating “with reasonable specificity” that the withheld records cannot be further

segregated. Armstrong v. Exec. Office of the President,

(D.C. Cir. 1996).

Here, Defendants aver that they “reviewed each record line-by-line to identify information

exempt from disclosure or for which a discretionary waiver of an exemption could be applied,”

Schurkamp Decl. ¶ 57, and their Vaughn Index reflects that particularized review, see ECF No.

12-4. They are entitled to the “presumption that they complied with the obligation to disclose

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

(D.C.

Cir. 2007). Plaintiff has not produced a “quantum of evidence” to “overcome that presumption,”

and therefore cannot withstand summary judgment. Page 7 of 8 IV. CONCLUSION

For these reasons, the court will GRANT Defendants’ Motion for Summary Judgment,

ECF No. 12. A corresponding Order will accompany this Memorandum Opinion.

Date: August 2, 2023

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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