UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JACK ALAN GROENENDAL,

Plaintiff,

v. No. 20-cv-1030 (DLF) EXECUTIVE OFFICE FOR U.S. ATTORNEYS, et al.,

Defendants.

MEMORANDUM OPINION

Jack Alan Groenendal, proceeding pro se, brings this action against the Executive Office

for United States Attorneys (EOUSA), United States Immigration and Customs Enforcement

(ICE), and Department of Homeland Security (DHS) under the Freedom of Information Act

(FOIA),

, et seq. In the last decade or so, Groenendal has submitted over 30 FOIA

requests with EOUSA and 17 FOIA requests with ICE. This suit concerns six of Groenendal’s

requests to EOUSA and two to ICE. Before the Court are the defendants’ Motion for Summary

Judgment, Dkt. 92, and Groenendal’s Cross-Motion for Summary Judgment, Dkt. 95, Motion for

Discovery, Dkt. 97, Motions for in Camera Review, Dkts. 99, 100, Motion for an Extension of

Time to File a Notice of Appeal, Dkt. 105, Motion to Expedite, Dkt. 108, and a Motion for Leave

to File a Motion for Judicial Resolution, Dkt. 110. For the reasons that follow, the Court will grant

the defendants’ Motion for Summary Judgment and deny Groenendal’s various motions. I. BACKGROUND 1

In 2007, Groenendal pleaded guilty to possession of child pornography, and he was

sentenced to 42 months’ imprisonment and 3 years’ supervised release. See United States v.

Groenendal, No. 07-cr-93 (W.D. Mich. Oct. 29, 2007), Dkt. 38. While on supervised release in

2011, Groenendal performed internet searches yielding pornographic results, and a computer-

forensics investigator later discovered adult and child pornographic images in “temporary storage”

on his hard drive. United States v. Groenendal, No. 11-cr-260,

, at *2 (W.D.

Mich. June 8, 2020). In June 2013, Groenendal was indicted in the Western District of Michigan

for attempted receipt and attempted possession of child pornography.

. A jury convicted

Groenendal, and he was sentenced to 15 years’ imprisonment for his offenses.

.

Since then, Groenendal has “submitted over 30 FOIA requests with” EOUSA and “a

minimum of seventeen FOIA request[s] or appeals to” ICE about his criminal cases. Defs.’

Statement of Materials Facts ¶¶ 4, 38, Dkt. 92-1; see Supp. Finney Decl. ¶ 8, Dkt. 102-3. Below,

the Court summarizes the groups of FOIA requests at issue here.

EOUSA Group 1: On September 11, 2014, Groenendal filed a FOIA request (2014-

04282) with EOUSA, seeking, among other things, a “HIPPA complaint,” all documents from

“U.S. Dep[artment] of Justice” and “U.S. Probation Office,” and “any and all

communications . . . with Attorney Samouris, US Probation Office and monitoring software

1 Unless otherwise noted, the facts in this opinion are drawn from the uncontested facts in the Defendants’ Statement of Material Facts, Dkt. 92-1. See Hawkins v. District of Columbia, No. 17-cv-1982,

, at *4 (D.D.C. Feb. 7, 2020) (“[I]n ruling on a motion for summary judgment, the Court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted . . . in [the non-moving party’s] opposition to the motion.” (internal quotation omitted)). Otherwise, the opinion recounts the facts as established in “depositions, answers to interrogatories, and admissions on file, together with the affidavits” to determine whether there is any “genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc.,

(1986) (citing Fed. R. Civ. P. 56).

2 company (Judy Hogaboom).” Supp. Finney Decl. ex. A at 1 (typeface altered); Supp. Finney Decl.

¶ 13. On April 28, 2015, Groenendal filed another FOIA request (2015-02537), requesting all

communications “from/to Special Agent Blair Babcock,” “from Judy Hogaboom forwarded to”

the U.S. Attorney’s Office “by Blair Babcock,” and “anything forwarded from Attorney Fotieo or

Attorney Samouris.” Supp. Finney Decl. ex. A at 4; Supp. Finney Decl. ¶ 15. EOUSA determined

that the U.S. Attorney’s Office for the Western District of Michigan was the “only District with

potentially responsive documents.” Defs.’ Statement of Material Facts ¶ 10. After searching

electronic and paper records, EOUSA initially disclosed 1,247 pages released in full, 295 pages

released in part, and 7 pages withheld in full. Id. ¶ 12; see Supp. Finney Decl. ex. B at 1. Upon

further review, EOUSA determined that 2 pages withheld in full should be released in part. Defs.’

Statement of Material Facts ¶ 13. A remaining page withheld in full was Groenendal’s presentence

report, which he may review subject to Bureau of Prisons regulation. Id. Groenendal appealed

the EOUSA’s response to the Office of Information Policy (OIP), which affirmed EOUSA’s search

and release. Supp. Finney Decl. ¶ 22. EOUSA claims that 297 pages released in part are exempt

from disclosure under FOIA Exemptions 5, 6, and 7(c), 4 pages withheld in full are exempt under

FOIA Exemptions 6 and 7(c), and 1 page is withheld in full under BOP policy. See Defs.’

Statement of Material Facts ¶¶ 14–17; see

(b)(5), (6), (7)(C).

EOUSA Group 2: On July 2, 2015, Groenendal filed a FOIA request (2015-03260),

seeking letters and replies about a “HIPAA complaint” and “letters/emails [he] sent to the” Grand

Rapids Michigan “U.S. Attorney’s Office.” Supp. Finney Decl. ex. D at 1; Supp. Finney Decl.

¶ 28. EOUSA determined that the U.S. Attorney’s Office for the Western District of Michigan

was the “only District with potentially responsive documents.” Defs.’ Statement of Material Facts

¶ 19. After searching email and case-tracking databases, the EOUSA informed Groenendal on

3 October 30, 2015 that there were no responsive records. See

; Supp. Finney Decl. ex.

E at 1. On appeal, OIP affirmed EOUSA’s search. See Supp. Finney Decl. ¶ 33.

EOUSA Group 3: On October 10, 2015, Groenendal filed a FOIA request (2016-00286

and 2016-01068), requesting “any/all letters[,] emails, or notes to or from Attorney Sharon Turek

case 1:11-cr-00260-PLM.” Supp. Finney Decl. ex. F at 1; Defs. Statement of Material Facts ¶ 22.

EOUSA determined that the U.S. Attorney’s Office for the Western District of Michigan was the

“only District with potentially responsive documents.” Defs.’ Statement of Material Facts ¶ 36.

After an email search by an AUSA, see Supp. Finney Decl. ¶ 37, EOUSA initially disclosed 136

pages released in full, 54 pages released in part, and 2 pages withheld in full, see Supp. Finney

Decl. ex. G at 1. Groenendal appealed EOUSA’s initial response, and OIP affirmed in part as to

the 2 pages withheld in full. See Defs. Mot. to Dismiss ex. C at 1, Dkt. 60-3. Review of EOUSA

Group 3 was thus limited to the 2 pages withheld in full, see Order of Jan. 24, 2023 at 2–3, Dkt.

77, but EOUSA has since released in full the 2 pages, see Supp. Finney Decl. ex. H.

EOUSA Group 4: On March 10, 2016, Groenendal submitted a FOIA request (2016-

001954) seeking “audio of my Oct. 2013 trial,” records about “contact with the court reporter

Kathleen Thomas,” and “letters, emails, or notes to or from Paul Neel regarding” Groenendal’s

prosecutions. Supp. Finney Decl. ex. I at 1; Supp. Finney Decl. ¶ 41. EOUSA determined that

the U.S. Attorney’s Office for the Western District of Michigan was the “only District with

potentially responsive documents.” Defs.’ Statement of Material Facts ¶ 27. After searching

relevant sources, EOUSA informed Groenendal on February 27, 2017 that there were no

responsive records outside of those produced in response to Groenendal’s previous FOIA requests.

See

; Supp. Finney Decl. ex. J at 1. On appeal, OIP affirmed “on partly modified grounds,”

holding that (1) EOUSA correctly concluded there were no audio-recording records and (2) to the

4 extent any records responsive to the remainder of Groenendal’s Group 4 request exist, they would

be exempt from disclosure under Exemptions 6 and 7(C). Supp. Finney Decl. ex. K at 1–2.

EOUSA Group 5: On October 5, 2017, Groenendal submitted a FOIA request (2018-

000633), seeking “[a]ny and all letters, faxes, e-mails and notes” regarding his prosecutions “plus

investigation notes.” Supp. Finney Decl. ex. L at 1; Supp. Finney Decl. ¶ 46. On November 15,

2017, Groenendal narrowed his request to “Exhibits 1, 2, and 3” in “Case No. 1:07-cr-00093-PLM-

1.” Supp. Finney Decl. ex. L at 4. In Groenendal’s first criminal case, the government “introduced

Exhibits[] 1, 2, and 3 at the preliminary/detention hearing,” but they are not on the public docket.

Supp. Finney Decl. ¶ 48. EOUSA determined that the U.S. Attorney’s Office for the Western

District of Michigan was the “only District with potentially responsive documents.” Defs.’

Statement of Material Facts ¶ 32. The Western District discovered 150 pages of responsive records

but determined the exhibits “contain pornographic material.”

. EOUSA informed

Groenendal on December 20, 2019 that it would withhold in full all 150 pages under Exemptions

3, 7(C), and 7(F). See Supp. Finney Decl. ex. M at 1. On appeal, OIP affirmed on partly modified

grounds, holding the records are exempt under the Privacy Act and Exemptions 7(C) and 7(F).

See Supp. Finney Decl. ex. N at 1–2. OIP did not reach Exemption 3. See

at 2 n.1.

Upon further review, EOUSA determined that Exhibit 1 “is a computer monitoring report

consisting of 23 pages that contains pornographic images” that “are not labeled as children or

adult”; Exhibit 2 “is 123 pages of [the same] computer monitoring report that contain[s] search

engines and search terms”; and Exhibit 3 “is 4 pages of computer monitoring that contain child

pornographic images saved to Plaintiff’s computer.” Supp. Finney Decl. ¶¶ 53–55. EOUSA now

claims the records are exempt under Exemptions 3, 7(C), 7(E), and 7(F).

.

5 EOUSA Group 6: On March 27, 2018, Groenendal submitted a FOIA request (2018-

003379) discussing “a recent Sixth Circuit case” and his

motion before the

Western District of Michigan. See Supp. Finney Decl. ex. O at 1–4; see Supp. Finney Decl. ¶ 56.

EOUSA informed Groenendal on May 4, 2018 that his request “did not reasonably describe the

records requested,” and EOUSA was thus unable to conduct a reasonable search. Defs.’ Statement

of Material Facts ¶¶ 36–37; see Supp. Finney Decl. ex. P at 1–2. On appeal, OIP affirmed for the

reasons stated by EOUSA. See Supp. Finney Decl. ex. Q at 1.

ICE Group 1: On April 17, 2015, Groenendal submitted a FOIA request (2015-ICFO-

80026) seeking records “on Blair Babcock’s synopsis” on “Case # GPO7QT11GP0015” and

communications about “case # 1:11-cr-260” from Rhonda Wallock, Daniel Mekaru, Sean Lewis,

Deno Fotieo, and Peter Samouris. Pineiro Decl. ex. A at 1, Dkt. 92-5; Pineiro Decl. ¶ 7(a). After

searching electronic and paper records, on December 14, 2015, ICE disclosed 8 pages released in

full and 209 pages released in part. See Pineiro Decl. ex. B at 1. ICE cited FOIA Exemptions 3,

5, 6, 7(C), and 7(E) and the Privacy Act as bases for withholding. See

at 1–3. Groenendal has

not appealed ICE’s response, and it is not at issue in this litigation. See Pineiro Decl. ¶ 7(d).

ICE Group 2: On March 12, 2018, Groenendal filed a FOIA request (2019-ICFO-22910)

seeking information about ICE Group 1, “attorney Deno Fotieo and investigator Adam Kelly,” and

“attorney [Peter] Samouris and or J.D. Gifford & Gary Wake [from] August 20, 2012 until

Nov[ember] 19, 2012.” Pineiro Decl. ex. C at 1; Pineiro Decl. ¶ 8(b). ICE tasked the Homeland

Security Investigation Program (HSI) with searching for responsive records, and “HSI informed

ICE that its investigation of Plaintiff concluded in 2014 and no new records involving Plaintiff

were generated since January 2014.” Second Pineiro Decl. ¶ 13(c)–(d), Dkt. 102-5. ICE informed

Groenendal on December 13, 2018 that “no records responsive to your request were found.”

6 Pineiro Decl. ex. D at 1. On appeal, ICE affirmed and determined that it previously released all

records responsive to ICE Group 2 in response to ICE Group 1. See Pineiro Decl. ex. G; Pineiro

Decl. ¶ 26(f).

ICE Group 3: On December 12, 2018, Groenendal filed a FOIA request (2019-ICFO-

27520) seeking information about ICE Group 1; “[a]ny and all letters, faxes, e-mails or notes sent

to or received from attorney Deno Fotieo or forensic investigator Adam Kelly” from August 22,

2011 through March 5, 2012; and “[a]ny and all letters, faxes, notes, and e-mails sent to or received

from attorney Peter Samouris, forensic investigator Gary Wake, or forensic investigator JD Gifford

from March 5, 2012 through August 31, 2013.” Pineiro Decl. ex. H at 3–4. ICE again tasked HSI

with searching for records, and HSI identified “no new records involving Plaintiff” since “January

2014.” Second Pineiro Decl. ¶ 14(c)–(d). ICE informed Groenendal on March 21, 2019 that “no

records responsive to your request were found.” Pineiro Decl. ex. I at 1. On appeal, ICE affirmed

the adequacy of the search and determined that it released all records responsive to ICE Group 3

in response to ICE Group 1. See Pineiro Decl. ex. L at 1; Pineiro Decl. ¶ 27(d), (f).

* * *

On April 16, 2020, Groenendal filed suit under the Freedom of Information Act,

, against EOUSA, OIP, DHS, and ICE. See Complaint at 1, Dkt. 1. After the Court struck

his Second Amended Complaint under Rule 8 of the Federal Rules of Civil Procedure, see Order

of May 26, 2021, Dkt. 38, Groenendal filed the operative Third Amended Complaint, see Dkts.

45, 53. The government moved for a partial dismissal for failure to exhaust, see Mot. to Dismiss,

Dkt. 60, and the Court granted in part and denied in part, see Order of January 24, 2023, Dkt. 77.

The Court dismissed claims related to an unexhausted FOIA request not relevant here, partially

dismissed claims related to EOUSA Group 3 except as to the 2 pages withheld in full, and

7 dismissed OIP as a defendant. See

at 2–4. As discussed supra, EOUSA subsequently released

the 2 pages at issue in Group 3. See Supp. Finney Decl. ex. H. Now, both parties move for

summary judgment, see Dkts. 92, 95, and Groenendal seeks discovery, in camera review, and an

extension of time to file a notice of appeal, see Dkts. 97, 99, 100, 105. He has also moved to

expedite and for leave to file a motion for judicial resolution under Rule 12(c), which the Court

construes as a motion to expedite. See Dkts. 108, 110.

II. LEGAL STANDARDS

Rule 56 of the Federal Rules of Civil Procedure mandates that “[t]he court shall grant

summary judgment 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). “Materiality is, of

course, a function of the applicable legal standard, which in this case is that an agency responding

to a FOIA request must conduct a search reasonably calculated to uncover all relevant documents,

and, if challenged, must demonstrate beyond material doubt that the search was reasonable.”

Kowalczyk v. DOJ,

(D.C. Cir. 1996) (cleaned up). All facts and inferences must

be viewed in the light most favorable to the requester and the agency bears the burden of showing

that it complied with FOIA. See Chambers v. U.S. Dep’t of Interior,

(D.C.

Cir. 2009).

“The system of disclosure established by the FOIA is simple in theory. A federal agency

must disclose agency records unless they may be withheld pursuant to one of the nine enumerated

exemptions listed in [5 U.S.C.] § 552(b).” DOJ v. Julian,

(1988). “[F]ederal

courts . . . rely on government affidavits to determine whether the statutory obligations of the

FOIA have been met.” Perry v. Block,

(D.C. Cir. 1982) (per curiam). The

agency’s affidavit is accorded a presumption of good faith, SafeCard Servs. v. SEC,

,

8 1200 (D.C. Cir. 1991), and “summary judgment may be granted on the basis of agency affidavits

if they contain reasonable specificity of detail rather than merely conclusory statements, and if

they are not called into question by contradictory evidence . . . or by evidence of agency bad faith,”

Judicial Watch, Inc. v. U.S. Secret Serv.,

(D.C. Cir. 2013) (cleaned up). The

D.C. Circuit has recognized that “the vast majority of FOIA cases can be resolved on summary

judgment.” Brayton v. Off. of the U.S. Trade Representative,

(D.C. Cir. 2011).

III. ANALYSIS

The Court will grant the defendants’ motion for summary judgment, deny Groenendal’s

cross-motion for summary judgment, and deny Groenendal’s various other motions.

A. Adequacy of Search

The Court concludes that EOUSA and ICE performed adequate searches for records

responsive to Groenendal’s FOIA requests. At summary judgment, an agency “must show 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.” Reps. Comm. for Freedom of the

Press v. FBI,

(D.C. Cir. 2017) (quoting Oglesby v. U.S. Dep’t of the Army,

(D.C. Cir. 1990)). The adequacy of a search “is judged by a standard of reasonableness

and depends, not surprisingly, upon the facts of each case.” Weisberg v. U.S. Dep’t of Just.,

(D.C. Cir. 1984). “[T]he issue to be resolved is not whether there might exist any

other documents possibly responsive to the request, but rather whether the search for those

documents was adequate.”

(emphasis in original). “Once the agency has provided a

reasonably detailed affidavit describing its search, the burden shifts to the FOIA requester to

produce ‘countervailing evidence’ suggesting that a genuine dispute of material fact exists as to

9 the adequacy of the search.” Hunton & Williams LLP v. EPA,

(D.D.C.

2017) (citing Morley v. CIA,

(D.C. Cir. 2007)).

EOUSA provided the declaration of Auborn Finney, an Attorney-Advisor with EOUSA’s

FOIA staff. See Finney Decl. ¶ 1, Dkt. 92-4. After Groenendal filed his opposition and cross-

motion, Finney submitted a supplemental declaration. See Second Finney Decl. ¶ 12. In addition,

ICE provided the declaration of Fernando Pineiro, an officer in ICE’s FOIA Office. See Pineiro

Decl. ¶ 1. Like Finney, Pineiro also subsequently filed a supplemental declaration. See Second

Pineiro Decl. ¶ 4.

The Court has reviewed in detail all four declarations and relevant exhibits concerning

Groenendal’s eight FOIA requests and concludes that EOUSA’s and ICE’s searches were

adequate. As to EOUSA Groups 1 through 5, Finney describes that EOUSA reasonably

determined that the U.S. Attorney’s Office for the Western District of Michigan was the only office

likely to have responsive records because it was the office that prosecuted Groenendal. See Supp

Finney Decl. ¶¶ 16, 29, 36, 42, 48. Although the Court need not recount it here, as to each Group

of FOIA requests, Finney provides meticulous details about the relevant record-keeping systems

(including electronic and hardcopy sources), the appropriate record custodians, and search terms.

See, e.g.,

¶¶ 16–23, 29–32, 36–38, 42–43, 48–55. Groenendal’s requests are challenging to

parse, but EOUSA deployed search terms reasonably calculated to yield potentially responsive

records. Finney further explains how the U.S. Attorney’s Office reviewed (and in the cases of

Groups 1, 3, and 5, re-reviewed) responsive records. See id. ¶¶ 23, 38–39, 56–57.

As to EOUSA Group 6, Finney accurately represents that Groenendal’s request lacks any

explicit description of records sought. See id. ¶¶ 56–57. Indeed, Groenendal apparently filed this

FOIA request to share that he “discovered a recent Sixth Circuit case that should be shared with

10 the various government agencies that [he] ha[s] written to recently”—a plainly inappropriate use

of FOIA procedures. Supp. Finney Decl. ex. O at 1. EOUSA’s conclusion that it had no basis to

search for responsive records was thus reasonable under the circumstances.

As to Groenendal’s FOIA requests to ICE, Pineiro also provides a more-than-adequate

description of the agency’s search. In addition to providing an overview of ICE’s standard

procedures for record searches, see Pineiro Decl. ¶¶ 10–24, he elaborates on the specific

procedures used to respond to ICE Groups 1, 2, and 3, see id. ¶¶ 25–34. Although ICE Group 1 is

not at issue here, Pineiro represents that “HSI was the directorate likely to have responsive

records,” and the Court concludes that this search limitation was appropriate given that HSI

investigates child exploitation—the category of crime for which Groenendal was convicted. Id.

¶ 25(b); Second Pineiro Decl. ¶ 14(c). Pineiro also details the electronic and hardcopy systems

searched, the search terms used, and the review of responsive records. Pineiro Decl. ¶ 25(b)–(h).

As to ICE Groups 2 and 3, Pineiro again represents that “HSI was the directorate likely to

have responsive records,” and he further describes the process by which the agency determined

that “no new [responsive] records involving” Groenendal “were generated since January 2014,”

meaning ICE had no additional records to disclose that were not already disclosed in ICE Group

1. Id. ¶¶ 26(b), (c), 27(b)–(d); see also Second Pineiro Decl. ¶¶ 13(d), 14(d). “[I]n an abundance

of caution,” ICE nevertheless “conducted a review of the records responsive to FOIA [Group] 1”

to determine if there were any additional “potentially responsive records to FOIA [Groups] 2 and

3.” Pineiro Decl. ¶ 30. This “line-by-line” review revealed that all “potentially responsive

records” to Groups 2 and 3 were already disclosed in response to Group 1. Id. ¶¶ 31, 34.

Groenendal’s numerous and repetitive FOIA requests are not models of clarity, but the

Finney and Pineiro declarations assure the Court that both agencies have, in good faith, met their

11 burden of producing a “reasonably detailed affidavit” describing its process of searching and

reviewing responsive records. Hunton & Williams LLP,

.

Scattered across his approximately 150 pages of briefing, Groenendal raises a handful of

arguments as to why the agencies’ searches were inadequate. All are meritless. First, he argues

that their searches failed to yield records of (1) an “e-mailed plea offer” of “a 5-year plea deal”

and (2) a computer-monitoring report from his period of supervised release. Opp’n at 11, 22, Dkt.

94. As to the computer-monitoring report, the Supplemental Finney Declaration represents that

EOUSA’s response to Groenendal’s Group 5 requests contains the computer-monitoring report at

issue. See Supp. Finney Decl. ¶¶ 53–55. That EOUSA found the report but withheld it in full does

not suggest the search was inadequate; rather, it suggests the exact opposite. As to the “e-mailed

plea offer” of “a 5-year plea deal,” it is blackletter FOIA law that “[t]he adequacy of a FOIA search

is generally determined not by the fruits of the search, but by the appropriateness of the methods

used to carry out the search.” Iturralde v. Comptroller of the Currency,

(D.C.

Cir. 2003). “[T]he fact that a particular document,” here an alleged offer of a 5-year plea deal that

Groenendal allegedly accepted, “was not found does not demonstrate the inadequacy of a search.”

Boyd v. Crim. Div. of Dep’t of Just.,

(D.C. Cir. 2007). Indeed, Groenendal

offers no more than speculation that the alleged plea document exists and that an adequate search

of EOUSA’s archives would uncover it.

Second, Groenendal argues that both agencies acted in bad faith. See, e.g., Opp’n at 7–10.

“Once the agency has provided a reasonably detailed declaration describing its search, the burden

shifts to the FOIA requester to produce countervailing evidence suggesting that a genuine dispute

of material fact exists as to the adequacy of the search.” Heartland All. for Hum. Needs & Hum.

Rts. v. USCIS,

, 110 (D.D.C. 2019) (cleaned up). “[T]he burden is on the

12 requester to rebut that evidence by a showing that the search was not conducted in good faith.”

Moore v. Aspin,

(D.D.C. 1996). Groenendal has fallen woefully short of

satisfying his burden. Groenendal faults the defendants for alleged “misconduct” occurring during

his criminal prosecutions in the Western District of Michigan. See, e.g., Cross-Mot. for Summ. J.

at 30–31, Dkt. 95. His allegations boil down (as far as the Court can tell) to an accusation that the

government violated Rule 16 by “refus[ing] to disclose the exam results of the actual screen shots”

or “actual screen captures from [his] paid computer monitor”; relying on Special Agent Babcock’s

“lie” that “illegal images were captured by the computer monitor”; and a coverup of the fact

Groenendal’s “monitored computer never clicked any ‘live’ links to visit any child pornography

websites.” Opp’n at 2, 22, 66. He offers no support for these allegations, and Groenendal fails to

accept that a unanimous jury of his peers and numerous federal judges have rejected his theories

before. See Groenendal,

, at *3. Even putting that aside, Groenendal

fundamentally misunderstands that “the government’s obligations in a FOIA case are not the same

as its obligations in the underlying criminal case,” Petrucelli v. DOJ,

(D.D.C. 2015). Although the Court liberally construes his filings, it will not impute bad faith to

EOUSA and ICE FOIA agents without a scintilla of evidence.

As additional evidence of bad faith, Groenendal points to the defendants’ “continued

delay[s]” during this litigation. Cross-Mot. for Summ. J. at 2. But the defendants’ requests for

extensions, especially to permit adequate time to respond to Groenendal’s unclear, lengthy, and

proliferating filings, are a routine part of FOIA litigation and, without more, do not serve as a basis

for a bad-faith finding. See Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Just.,

(D.D.C. 2018) (“Courts routinely find that delays in responding to FOIA

requests are not, in and of themselves, indicative of agency bad faith.” (cleaned up)).

13 Further, to the extent Groenendal bases his bad-faith allegations on the failure of the

agencies to find certain sought-after records, see Cross-Mot. for Summ. J. at 4, those arguments

are rejected for the reasons stated supra. Indeed, Groenendal cannot rebut the presumption of

good faith with such “purely speculative claims about the existence and discoverability of other

documents.” Ground Saucer Watch, Inc. v. CIA,

(D.C. Cir. 1981).

Finally, Groenendal attempts to pinpoint three deficiencies in ICE’s search, but he is off

the mark as to each. First, contrary to Groenendal’s suggestion, ICE did not use the “[w]rong

dates” by failing to search “for any items in 2014 or after.” Opp’n at 68. ICE Group 2 requested

records from “August 20, 2012 until Nov[ember] 19, 2012,” Pineiro Decl. ex. C at 1, and ICE

Group 3 requested records ranging from “Aug[ust] 22, 2011” to “August 31, 2013,”

ex. H at 4.

But as the Second Pineiro Declaration makes clear, in response to Group 1, ICE’s “search would

have captured the records” in those timeframes and “no new records involving Plaintiff were

generated since January 2014.” Second Pineiro Decl. ¶ 13(b), (d). As such, ICE did in fact search

for items that postdated 2014 and found that none existed.

Second, Groenendal incorrectly argues that ICE erred by relying “only” on “the search term

‘Groenendal’” when it could have used “every name” included in his Groups 2 and 3 requests.

Opp’n at 72. An “agency need not deploy every conceivable search term or permit the FOIA

requester to dictate the search terms in the course of litigation, but it must use terms reasonably

calculated to locate responsive records.” Bernegger v. EOUSA,

(D.D.C.

2018). Here, it was entirely reasonable for ICE to begin and end its search with the plaintiff’s

name because his numerous FOIA requests all orbit around himself and his underlying criminal

cases. See Dorsey v. EOUSA,

(D.D.C. 2013) (holding that use of the

“plaintiff’s name as a search term” was “reasonably calculated to locate the records plaintiff seeks”

14 because the “plaintiff’s FOIA request,” like Groenendal’s, “is properly construed as one for

records about himself and his criminal case”).

Third, Groenendal erroneously suggests ICE failed to search HSI’s office in “Grand

Rapids . . . in [Groups] 2 or 3.” Opp’n at 72. But this misses the point. The Pineiro Declarations

represents that ICE “tasked a Special Agent within the HSI Grand Rapids Field Office . . . to

conduct searches” in response to Group 1, Pineiro Decl. ¶ 25(b), and ICE “released Plaintiff’s

entire investigative file to [him] in 2015,” Second Pineiro Decl. ¶ 14(e). The Second Pineiro

Declaration further explains that “no new records involving [Groenendal] were generated since

January 2014.” Second Pineiro Decl. ¶¶ 13(d), 14(d). Per HSI’s representation to ICE, any records

responsive to Groups 2 and 3 were thus “duplicative of records released to [Groenendal] in

response to” Group 1, including all records discovered at the HSI Grand Rapids office. Id. ¶ 13(d),

(e). So there were simply no new records to search in response to Groups 2 and 3, whether in

Grand Rapids or elsewhere.

The Court thus finds Groenendal’s spray-and-pray counterarguments all unavailing, and it

has no trouble concluding that EOUSA’s and ICE’s searches were adequate.

B. Withholdings

FOIA creates a framework of presumptions and exemptions. If certain conditions are met,

it is presumed that the request for documents must be granted. Specifically, the Act provides that

“each agency, upon any request for records which (i) reasonably describes such records and (ii) is

made in accordance with published rules stating the time, place, fees (if any), and procedures to

be followed, shall make the records promptly available to any person.”

(a)(3)(A).

That presumption is overcome, though, if certain exemptions are satisfied. See

§§ 552a(j)(2),

(k)(2), 552(b). Under a recent amendment to FOIA, “[a]n agency shall . . . withhold information

15 under” a FOIA exemption “only if . . . (I) the agency reasonably foresees that disclosure would

harm an interest protected by an exemption” or “(II) disclosure is prohibited by law.”

(a)(8)(A).

EOUSA seeks to withhold records responsive to Groups 1 and 5. In response to Group 1,

EOUSA withheld in full 4 pages containing a third-party declaration under Exemptions 6 and 7(C);

released 297 pages but withheld “third-party names, third-party addresses, names of law

enforcement personnel, DOJ personnel, DOJ office numbers, and DOJ emails” under Exemptions

6 and 7(C); and released a 1-page email exchange (within its 297-page disclosure) but withheld a

description of a proposed plea offer under Exemption 5. 2 Supp. Finney Decl. ¶ 65. In response to

Group 5, EOUSA withheld in full 150 pages containing 23-page and 123-page computer

monitoring reports and 4 pages of child pornography under Exemptions 3, 7(C), 7(E), and 7(F).

. For the following reasons, the Court concludes that the withholdings were proper.

2 The Supplemental Finney Declaration also notes that EOUSA withheld in full one page responsive to Group 1 containing part of Groenendal’s presentence report. See Supp. Finney Decl. ¶ 23. EOUSA does not claim any applicable FOIA exemption for this page of the PSR, and it is well established that the Freedom of Information Act generally requires disclosure of PSRs. See DOJ v. Julian,

(1988). But Groenendal does not appear to contest EOUSA’s representation that disclosure of the PSR would conflict with Bureau of Prisons policy. Even assuming Groenendal had not forfeited this issue, the D.C. Circuit has held (post-Julian) that “FOIA does not entitle [a plaintiff] to have copies of his PSRs” when he “was afforded a meaningful opportunity to review his PSRs and to take notes on them.” Martinez v. BOP,

(D.C. Cir. 2006); see also Sample v. BOP,

(D.C. Cir. 2006) (“Relying on pre-1996 cases, this Court held that since Martinez was afforded a meaningful opportunity to review his PSRs and to take notes on them, FOIA did not entitle him to retain a copy of them.” (cleaned up)). Otherwise, FOIA would serve as a workaround to BOP policy, which was crafted “based on concerns about inmate safety” that the Court is “loath to second-guess.” Martinez,

. Here, EOUSA notes that “[a]ccess to [his] PSR will be granted in accordance with the enunciated policy of the Bureau of Prisons,” meaning Groenendal will in principle have a meaningful opportunity to review his PSR in prison. Supp. Finney Decl. ¶ 23. As such, there does not appear to be any issue of improper withholding as to the PSR, and the Court will not order disclosure in light of inmate-safety concerns.

16 1. Exemptions 6 and 7(c)

“FOIA Exemptions 6 and 7(C) seek to protect the privacy of individuals identified in

certain agency records.” ACLU v. DOJ,

(D.C. Cir. 2011). Exemption 6 protects

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

unwarranted invasion of personal privacy,”

(b)(6), while Exemption 7(C) protects

“records or information compiled for law enforcement purposes” that “could reasonably be

expected to constitute an unwarranted invasion of personal privacy,”

§ 552(b)(7)(C).

When an agency invokes both exemptions, as here, courts “focus” on Exemption 7(C)

because it “establishes a lower bar for withholding material.” Citizens for Resp. & Ethics in Wash.

v. DOJ,

, 1091 n.2 (D.C. Cir. 2014) (internal quotation marks omitted). As a

threshold matter, the agency invoking Exemption 7(C) must demonstrate the withheld records

were “compiled for law enforcement purposes.”

(b)(7). If this threshold is cleared,

courts must then balance the privacy interests inherent in the records against the public’s interest

in their disclosure. See Citizens for Resp. & Ethics in Wash. v. DOJ,

(D.C. Cir.

2017). If the withheld records implicate a substantial privacy interest, the plaintiff “bears the

burden of showing (1) that ‘the public interest sought to be advanced is a significant one, an interest

more specific than having the information for its own sake,’ and (2) that the information [it] seeks

‘is likely to advance that interest.’” Roth v. DOJ,

(D.C. Cir.

2011) (quoting Nat’l Archives & Recs. Admin. v. Favish,

(2004)). Further, “the

only public interest relevant for purposes of Exemption 7(C) is one that focuses on the citizens’

right to be informed about what their government is up to.” Sussman v. U.S. Marshals Serv.,

(D.C. Cir. 2007) (cleaned up).

17 As to Group 1, EOUSA withheld in full a 4-page “declaration of a third party” and released

in part 297 pages except for “third-party names,” “third-party addresses, names of law enforcement

personnel, DOJ personnel, DOJ office numbers, and DOJ email[]” addresses. Supp. Finney Decl.

¶¶ 25–26. The withholdings include information about numerous “nonpublic EOUSA employees”

and “other personally identifiable information” of third parties “compiled as a result of the

USAO’s fulfillment of its law enforcement duties.” Id. ¶¶ 84, 87. There appears to be no dispute

that these records were “compiled for law enforcement purposes” because they contain identifying

information about individuals who provided information or assisted in the prosecution of

Groenendal. Woodward v. U.S. Marshals Serv.,

, 127 (D.D.C. 2021)

Further, the Court agrees that these withholdings are consistent with Exemption 7(C)’s

purpose of protecting personally identifying information, the disclosure of which would threaten

substantial privacy interests. As to EOUSA’s withholding of third-party and investigation-subject

information in the 4-page declaration and parts of the 297 pages, nondisclosure appears proper

under the D.C. Circuit’s “categorical rule permitting an agency to withhold information identifying

private citizens mentioned in law enforcement records, unless disclosure is necessary in order to

confirm or refute compelling evidence that the agency is engaged in illegal activity.” Schrecker

v. DOJ,

(D.C. Cir. 2003) (cleaned up). Indeed, such concerns are particularly

acute in cases like this one in which the underlying criminal investigation concerns the sensitive

topic of child pornography. Further, redaction of information identifying public officials in the

297-page record also advances important privacy interests. “[G]overnment officials do not

surrender all rights to personal privacy when they accept a public appointment,” Bast v. DOJ,

(D.C. Cir. 1981), and EOUSA has limited redactions to personally identifying

information of non-public-facing employees, such as each employee’s “name, address, place of

18 birth, employment history, and telephone number,” Shapiro v. DOJ,

(D.D.C.

2014); see Supp. Finney Decl. ¶ 89; Defs.’ Mot. for Summary Judgment at 15.

As to Group 5, EOUSA properly relies on Exemption 7(C) to withhold pornographic

images of adult and children. The Group 5 records are contained in three exhibits, and two such

exhibits are relevant to this analysis. 3 See Supp. Finney Decl. ¶ 50. Exhibit 1 “contains

pornographic images” that “are not labeled as children or adult,” and Exhibit 3 is “4 pages of

computer monitoring that contain child pornographic images.” Id. ¶ 53, 55. Exhibit 1 also

“contains non-pornographic images of third parties.” Defs.’ Reply at 19, Dkt. 102-1. The

aforementioned “categorical” rule against disclosure of third-party identifying information applies

with even more force to these records. Schrecker,

. As to Exhibit 1, even assuming

the withheld photographs are adult pornography, “Exemption 7(C) takes particular note of the

strong interest of individuals, whether they be suspects, witnesses, or investigators in not being

associated unwarrantedly with alleged criminal activity.” Dunkelberger v. DOJ,

(D.C. Cir. 1990) (cleaned up). Accordingly, the subjects of the adult pornography have

privacy and reputational interests in not being associated with a child-pornography investigation.

Further, as to Exhibit 3, it goes without saying that “[c]rime victims”—especially child victims—

“have a cognizable privacy interest” in not having their explicit photographs or identities publicly

disclosed. Accurso v. FBI, No. 19-cv-2540,

, at *5 (D.D.C. Feb. 5, 2021).

Despite the length of his filings, Groenendal does not apparently contest the privacy

interests at stake, effectively conceding those arguments. See Ford v . DOJ,

(D.D.C. 2016). Instead, he argues there is significant “public interest” in “having the truth

3 All three Exhibits derive from the same computer-monitoring report. See Supp. Finney Decl. ¶¶ 52–55. This report was “compiled for law enforcement purposes” as discussed in Section III.B.3 infra.

19 exposed” as to government misconduct during his underlying criminal prosecutions. Opp’n at 58.

When “governmental misconduct is alleged as the justification for disclosure, the public interest

is insubstantial unless the requester puts forward compelling evidence that the agency denying the

FOIA request is engaged in illegal activity and shows that the information sought is necessary in

order to confirm or refute that evidence.” McCutchen v. DHHS,

(D.C. Cir. 1994).

Groenendal presents no such “compelling evidence” of misconduct.

Rather, he repeats

baseless allegations of government misconduct that, as discussed in Section III.A, supra, have

been previously rejected. Nor does he advance any arguments why “access to the names and

addresses of private individuals appearing in files within the ambit of Exemption 7(C)” would be

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

activity.” SafeCard,

. Nor does he refute the significant privacy interests of the

subjects depicted in pornography found on his computer, especially children. Groenendal simply

treats all of EOUSA’s withholdings as a monolith covering up a botched prosecution. Advancing

no “compelling evidence” beyond conspiratorial allegations of misconduct, see

at 1205–06, he

cannot demonstrate a public interest outweighing the privacy interests at stake, see Dent v. EOUSA,

(D.D.C. 2013) (“It is a FOIA requester’s obligation to articulate a public

interest sufficient to outweigh an individual’s privacy interest, and the public interest must be

significant.”). EOUSA’s withholdings were thus proper.

Further, although EOUSA “does not expressly address” the foreseeable-harm requirement

as to the Exemptions 6 and 7(C), “a court may find the foreseeable-harm requirement satisfied if

‘the very context and purpose of’ the withheld material ‘make[s] the foreseeability of harm

manifest.’” Amiri v. Nat’l Sci. Found.,

, 21 (D.D.C. 2021) (quoting Reps. Comm.

for Freedom of the Press v. FBI,

(D.C. Cir. 2021)); see Ball v. U.S. Marshals

20 Serv., No. 19-cv-1230,

, at *9 (D.D.C. Oct. 19, 2021) (“When Exemption 7(C)

is invoked, for example, the justifications for non-disclosure generally are also sufficient evidence

of foreseeable harm.”). Here, the Supplemental Finney Declaration and the Vaughn index more

than clear this hurdle. The declaration represents that disclosure of personally identifying

information of third parties and law-enforcement personnel assisting Groenendal’s prosecutions

“could subject the individuals to an unwarranted invasion of their personal privacy by leading to

efforts to contact them directly or subject them to harassment or harm.” Supp. Finney Decl. ¶ 84;

see also Vaughn Index at 2, Dkt. 93 (“Disclosure could subject [private and public individuals] to

harassment both in the conduct of their official duties and private life.”). Here, the risk of

harassment is perhaps even more acute given Groenendal’s penchant for prolific filings. In all,

“[t]his is enough to show foreseeable harm under Exemption 7(C).” Ball,

, at

*9.

2. Exemption 3

Exemption 3 permits the nondisclosure of materials that are “specifically exempted from

disclosure by [another] statute” so long as that statute “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 specifically cites this paragraph.”

(b)(3)(A)–(B). Here, EOUSA claims that Exemption 3 covers Exhibits 1 and 3 of its Group

5 response. See Defs.’ Reply at 17–18. Exhibit 1 contains a 23-page “computer monitoring report”

containing “pornographic images” that “are not labeled as children or adult.” Supp. Finney Decl.

¶ 53. Exhibit 3 is 4 pages “of computer monitoring that contain child pornographic images saved

to [Groenendal’s] computer.”

. According to EOUSA, both Exhibits are exempt from

disclosure under the Child Victims’ and Child Witnesses’ Rights Act,

, which

21 “qualifies as an Exemption 3 withholding statute,” Rodriguez v. Dep’t of the Army,

(D.D.C. 2014). Under this statute, the disclosure of “the name or any other information

concerning a child” victim of a crime is prohibited.

(d)(1)(A)(i). The Court has

no trouble accepting that Exhibit 3 is doubly exempt from disclosure under Exemption 3 because

it contains actual child pornography. It thus contains “information concerning a child” that may

not be disclosed.

Further, Exemption 3 covers “disclosure[s] . . . prohibited by law,”

(a)(8)(A)(i)(II), so no additional showing of foreseeable harm is needed, see Rosenberg v.

DOD,

, 73 n.1 (D.D.C. 2018).

As to Exhibit 1, however, EOUSA falls short of justifying withholding under Exemption

3. Although Exhibit 1 “contains pornographic images,” Supp. Finney Decl. ¶ 53, EOUSA

represents that the images “may constitute child pornography” and “website links” that with a “not

insignificant likelihood” “lead to pornographic images” that “are child porn,” Defs.’ Reply at 17–

18 (emphasis added). The plain language of

(d)(1)(A)(i) applies only to child

victims, and here, EOUSA has not established that the pornographic images are in fact child

pornography. As such, the Court is not convinced Exhibit 1 is doubly covered under Exemption

3. But the photographs in Exhibit 1 are nonetheless properly withheld under Exemption 7(C), and

for the reasons stated in Section III.B.1, supra, EOUSA has shown foreseeable harm.

3. Exemptions 7(E), (F)

Exemption 7 protects “records or information compiled for law enforcement purposes,” so

long as they fall within one of the statute’s sub-sections.

(b)(7). EOUSA seeks to

withhold all 150 pages of records (i.e., all three Exhibits) responsive to request Group 5 under

subsections 7(E) and (F). As discussed supra, the Court has already concluded that the

pornographic images in Exhibits 1 and 3 are exempt from disclosure under Exemptions 6 and 7(C).

22 Exhibit 3 contains no other content besides the withheld images, so the only issue remaining is

whether Exhibits 1 and 2—the remaining portions of the computer monitoring report collected

during Groenendal’s supervised release—were properly withheld under Exemptions 7(E) and/or

7(F). The Court concludes that Exemption 7(E) covers the computer-monitoring report, so it has

no need to evaluate whether 7(F) also applies.

“To fall within Exemption 7, documents must first meet a threshold requirement: that the

records were compiled for law enforcement purposes.” Pub. Emps. for Env’t Resp. v. U.S. Section,

Int’l Boundary & Water Comm’n,

, 202–03 (D.C. Cir. 2014) (cleaned up). Law

enforcement entails “proactive steps designed to prevent criminal activity and to maintain

security.”

at 203 (quoting Milner v. Dep’t of the Navy,

, 582 (2011) (Alito, J.,

concurring)). The agency “need only establish a rational nexus between the investigation and one

of [its] law enforcement duties and a connection between an individual or incident and a possible

security risk or violation of federal law.” Blackwell v. FBI,

(D.C. Cir. 2011)

(Kavanaugh, J.) (cleaned up).

Exhibits 1 and 2 satisfy this test. Both are excerpts from the same computer monitoring

report, which is a tool “law enforcement use[s] to ensure sex offenders do not reoffend by

accessing prohibited materials including child pornography during supervised release.” Defs.’

Reply at 20. The report thus sprang into existence as a routine part of law enforcement’s efforts

to monitor sex offenders who are at a heightened risk of reoffending. As in Blackwell, the

existence of “law enforcement purpose” “is especially convincing in this case because”

Groenendal “explicitly sought records related to his own criminal prosecution.” Blackwell,

; see Supp. Finney Decl. ¶ 47 (noting Group 5 sought records “regarding Jack

Groenendal involving case nos 1:11-cr-00260 & 1:07-cr-00093”).

23 Clearing the threshold requirement, EOUSA properly withheld Exhibits 1 and 2 under

Exemption 7(E). This section protects information that “would disclose techniques and procedures

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

described this is a “relatively low bar for the agency to justify withholding,” and “an agency must

demonstrate only that release of a document might increase the risk that a law will be violated or

that past violators will escape legal consequences.” Pub. Emps. for Env’t Resp.,

(cleaned up). Here, Exhibits 1 and 2 contain “website links with corresponding dates and times,”

“search engine hits,” and “search terms.” Defs.’ Reply at 17–18. Public access to this information

could “train potential violators.” Mayer Brown LLP v. IRS,

(D.C. Cir. 2009).

For example, other sex offenders on supervised release with access to this information would gain

knowledge that the particular “website links,” “search engine hits,” and “search terms” Groenendal

used attracted the attention of law enforcement. Defs.’ Reply at 20; see Supp. Finney Decl. ¶ 92.

Although “not necessarily provid[ing] a blueprint for” evading law-enforcement suspicion, this

information “could reasonably be expected to risk circumvention of the law” because sex offenders

could avoid use of those search terms and websites. Mayer Brown LLP,

; see

Accurso,

, at *6–8 (holding that Exemption 7(E) protected a computer-

monitoring report describing “the software, techniques, and procedures” employed during an

investigation into violations of child-pornography laws).

Further, EOUSA has satisfied the foreseeable-harm requirement. “What an agency must

do to show foreseeable harm under Exemption 7(E) is an open question,” but as other judges in

this district have noted, “Exemption 7(E) by its own terms already requires that an agency show a

risk of foreseeable harm.” Reps. Comm. for Freedom of the Press v. CBP,

,

24 127–28 (D.D.C. 2021). As such, the requirement to show “some risk of circumvention before

withholding material” under Exemption 7(E) “already forces the agency to show some risk of

harm.”

. For the aforementioned reasons, the disclosure of the computer-monitoring

report would enable sex offenders under supervision and would-be offenders to avoid detection by

law enforcement. See Supp. Finney Decl. ¶ 92. Through such evasion, offenders may continue

violating anti-child-pornography laws with impunity, undermining efforts to stop child

exploitation. EOUSA has thus shown that its withholdings under Exemption 7(E) were proper.

4. Exemption 5

FOIA Exemption 5 protects from disclosure “inter-agency or intra-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). This exemption “incorporates the traditional privileges that the

Government could assert in civil litigation against a private litigant—including . . . the deliberative

process privilege.” Loving v. DOD,

(D.C. Cir. 2008) (internal quotation marks

omitted). To invoke the deliberative process privilege, an agency must make several showings.

First, “the communication must be ‘inter-agency or intra-agency.’” Dep’t of Interior v. Klamath

Water Users Protective Ass’n,

(2001) (quoting

(b)(5)). Second, the

information withheld must be both “predecisional” and “deliberative.” Loving,

(cleaned up). Here, EOUSA invokes Exemption 5 to withhold part of an email exchange between

AUSA Daniel Mekaru and an ICE agent describing “a proposed plea offer.” Supp. Finney Decl.

¶ 27; see Supp. Finney Decl. ex. T at 1.

The Court concludes that the email redaction was proper under the deliberative-process

privilege. First, the communication is plainly “inter-agency,”

(b)(5), as the sender

25 is AUSA Mekaru, see Supp. Finney Decl. ex. T at 1, and the recipient is an ICE agent, see Supp.

Finney Decl. ¶ 27; Supp. Finney Decl. ex. T (showing the recipient’s email ending in “dhs.gov”).

Second, the redacted portion of the email is predecisional and deliberative. A document is

“predecisional if ‘it was generated before the adoption of an agency policy’ and deliberative if ‘it

reflects the give-and-take of the consultative process.’” Judicial Watch, Inc. v. FDA,

(D.C. Cir. 2006) (quoting Coastal States Gas Corp. v. Dep’t of Energy,

(D.C. Cir. 1980)). AUSA Mekaru’s “plea-related email” is predecisional as it “documents the

process by which” he “formulated a proposed plea offer decision” in consultation with “the

investigative agency who investigated [Groenendal’s] case, in an effort to agree on an appropriate

proposed plea offer.” Supp. Finney Decl. ¶ 76. Indeed, Finney’s representation is corroborated

by the unredacted portion of Exhibit T. In that portion, the ICE agent responds to AUSA Mekaru’s

description of the proposed plea offer, stating “I think 10 to 20 is good. [Groenendal’s] guidelines

are not that high for the TSR violations, so I think it should run consecutive.” Supp. Finney Decl.

ex. T at 1. Plainly, the U.S. Attorney’s Office and investigators were expressing their opinions on

the contents of a potential plea agreement before one was actually extended to Groenendal. See

Judicial Watch, Inc.,

(noting a communication is predecisional if “it was generated

before the adoption of an agency policy”).

Groenendal resists the predecisional label, asserting that prosecutors “offered all three

attorneys of the Plaintiff, Fotieo, Samouris, and Turek plea offers, not part of any exemptions.”

Opp’n at 56. But as EOUSA correctly points out, see Defs.’ Reply at 15, a “document is

‘predecisional’ if it precedes, in temporal sequence, the ‘decision’ to which it relates,” Senate of

the Commonwealth of P.R. v. DOJ,

(D.C. Cir. 1987). Here, communications

about whether to extend a plea offer obviously precede the ultimate decision to do so.

26 Further, the redacted email was deliberative. Finney represents that the redacted

communication “was prepared to help supervisors at the District formulate a final agency position

about whether to extend [Groenendal] a plea offer.” Supp. Finney Decl. ¶ 77. As Exhibit T

illustrates, the U.S. Attorney’s Office and ICE were engaged in the “give-and-take of the

consultative process,” Judicial Watch, Inc.,

, deciding whether, among other things,

to recommend concurrent or consecutive sentences in light of Groenendal’s sentencing exposure

under the Sentencing Guidelines, see Supp. Finney Decl. ex. T. EOUSA thus reasonably

concluded that the redaction was necessary to protect the agencies’ deliberations over the terms of

a plea agreement. See Matthews v. FBI, No. 15-cv-569,

, at *5 (D.D.C. Mar.

31, 2019) (holding that a draft plea offer was properly deemed deliberative as it “expresse[d]

opinion on a legal matter” as to the “overall strength of the government’s case” and “reflect[ed]

the consultative process between the FBI and the Office of the United States Attorney”).

EOUSA has also satisfied its burden of showing that release of these records would lead to

foreseeable harm under

(a)(8)(A)(i)(I). See Reps. Comm.,

. “In the

context of withholdings made under the deliberative process privilege, the foreseeability

requirement means that agencies must concretely explain how disclosure ‘would’—not ‘could’—

adversely impair internal deliberations.”

at 369–70. A “perfunctory state[ment] that disclosure

of all the withheld information—regardless of category or substance—would jeopardize the free

exchange of information between senior leaders within and outside of the [agency]” is insufficient.

(cleaned up). The agency must make “a focused and concrete demonstration of why

disclosure of the particular type of material at issue will, in the specific context of the agency action

at issue, actually impede those same agency deliberations going forward.”

27 Here, the Supplemental Finney Declaration satisfactorily lays out the foreseeable harm

from disclosing internal communications like AUSA Mekaru’s. Finney first outlines the “role” of

the redacted communication “in the relevant agency decisional processes.” Reps. Comm.,

. Before extending a plea offer, prosecutors must communicate internally and with other

agencies about “the strength of evidence, calculations for potential sentencing terms, the

willingness of witnesses to participate in a trial, and the ease or difficulty of proving the charges

against a defendant.” Supp. Finney Decl. ¶ 78. Disclosure of such communications would deter

line prosecutors from “creat[ing] the most thorough and candid documents possible” to keep other

“Executive Branch decision-makers” informed, and it would prevent “senior leadership” from

receiving “forthright advice on [the] critical matter[]” of whether to extend a plea offer to a

defendant. Id. ¶ 79. Further, Finney highlights “the particular sensitivity of th[is] type[] of

information.” Reps. Comm.,

. Disclosure “would arm those potential future violators

with critical insights about how to game the criminal justice system in child pornography cases”

or how to “gain overly lenient plea offers.” Supp. Finney Decl. ¶ 78. In the Court’s view, these

representations reflect that EOUSA has “specifically and thoughtfully determine[d]” that it

“reasonably foresees that disclosure” of the email would be harmful. Reps. Comm.,

.

C. 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). An agency may satisfy this obligation by “(1) providing a Vaughn index that adequately

describes each withheld document and the exemption under which it was withheld; and (2)

submitting a declaration attesting that the agency released all segregable material.” Nat’l Sec.

Couns. v. CIA,

(D.D.C. 2013). The segregability requirement does not

28 apply to non-exempt material that is “inextricably intertwined” with exempt material, Mead Data

Cent., Inc. v. U.S. Dep’t of the Air Force,

(D.C. Cir. 1977), and agencies are

entitled to a “presumption that they complied with the obligation to disclose reasonably segregable

material,” Sussman,

. Even if a plaintiff fails to contest segregability (as is the

case here), “the court is required to address segregability sua sponte.” Aftergood v. CIA,

, 561 n.1 (D.D.C. 2005).

EOUSA and ICE have satisfied these requirements. As to EOUSA, the Finney declaration

“attest[s] to the agency’s ‘line-by-line review of each document withheld in full’ and the agency’s

determination ‘that no documents contained releasable information which could be reasonably

segregated from the nonreleasable portions,’ in conjunction with a Vaughn index describing the

withheld record, suffice.” Ecological Rts. Found. v. EPA,

, 66 (D.D.C. 2021)

(citing Johnson v. EOUSA,

, 776 (D.C. Cir. 2002)); see Finney Decl. ¶ 79 (“In

reviewing the responsive material, [EOUSA] staff conducted a detailed line-by-line review to

satisfy [its] reasonable segregability obligations . . . . The responsive material was either exempt

itself or was so intertwined with non-exempt information that segregation of the non-exempt

information was not reasonably possible.”). EOUSA’s Vaughn index also provides additional

insight into its record-by-record review, including details about the scope of particular redactions

and releases. See Vaughn Index at 1–3. Although the Vaughn Index’s description of EOUSA’s

response to Group 5 provides only a high-level description of the 150 pages withheld in full,

EOUSA submitted a supplemental declaration breaking down the Group 5 withholdings and

reaffirming the non-segregability of all withholdings. See Supp. Finney Decl. ¶¶ 53–55, 97.

As to ICE, searches responsive to Groups 2 and 3 “did not produce any responsive records,”

so “there was no segregability analysis to conduct.” Goldstein v. IRS,

, 190

29 (D.D.C. 2017). ICE nevertheless conducted a segregability analysis of records responsive to ICE

Group 1 for good measure. Pineiro Decl. ¶¶ 30, 31 (“[I]n an abundance of caution, [ICE]

conducted a review of the records responsive to FOIA Request No. 1 for segregable information.

My staff, under my supervision, has reviewed each record line-by-line to identify information

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

Although it was not required to do so because ICE Group 1 is not at issue in this case, ICE has

satisfied the Court that it took diligent efforts to search for and release any segregable records in

response to Group 1 that might have been responsive to Groups 2 and 3. Given these declarations,

EOUSA’s Vaughn index, and the presumption of agency good faith, the Court concludes that

EOUSA and ICE have complied with their segregability obligations.

D. Miscellaneous Motions

Groenendal’s pending motions for discovery, in camera review, expedited proceedings,

and an extension of time to file a notice of appeal all lack merit. First, discovery is not warranted.

“Discovery in FOIA is rare and should be denied where an agency’s declarations are reasonably

detailed, submitted in good faith and the court is satisfied that no factual dispute remains.” Baker

& Hostetler LLP v. U.S. Dep’t of Com.,

(D.C. Cir. 2007) (cleaned up). Limited

discovery is typically only permitted when the agency has acted in bad faith. See

Here, as

discussed in Section III.A, supra, Groenendal has introduced no credible evidence of bad faith,

and EOUSA and ICE have persuaded the Court that their searches were adequate. As such,

discovery is not warranted.

Second, and for similar reasons, in camera review is unwarranted. “If the agency’s

affidavits provide specific information sufficient to place the documents within the exemption

category, if this information is not contradicted in the record, and if there is no evidence in the

30 record of agency bad faith, then summary judgment is appropriate without in camera review of

the documents.” Larson v. Dep’t of State,

(D.C. Cir. 2009) (cleaned up). Given

the agencies’ affidavits were “sufficiently detailed,” Groenendal advances no plausible “evidence

of bad faith,” and the agencies’ withholdings were proper, the Court concludes that in camera

review is also “not necessary. ACLU v. DOD,

(D.C. Cir. 2011). Groenendal

seeks in camera review “to ensure that the government fulfilled its Rule 16 obligations.” Mot. for

In Camera Review of Withheld FOIA Documents Noted at 2, Dkt. 99. But Rule 16 of the Federal

Rules of Criminal Procedure is not the operative standard here, and it is not the Court’s role to

supervise the government’s compliance with Rule 16 in separate proceedings.

Third, the accompanying order resolving all pending motions moots Groenendal’s motions

to expedite, including his Rule 12(c) motion, which the Court construes as a motion to expedite.

As with any case, the Court seeks to resolve pending motions expeditiously. The Court would be

remiss, however, not to note (again) that the sheer volume of Groenendal’s filings has contributed

to any delay. See Min. Order of June 16, 2023. To the extent Groenendal actually seeks a judgment

on the pleadings under Rule 12(c), he relies on documents beyond the pleadings, so the Court will

convert the motion to a motion for summary judgment and deny it for the aforementioned reasons.

See Jeffries v. Garland, No. 15-cv-1007,

, at *8 (D.D.C. July 27, 2022) (denying

Rule 12(c) motion when “summary judgment remains the proper mode of analysis”).

Finally, the Court will deny the motion for an extension of time to file a notice of appeal.

In his August 21, 2023 motion, Groenendal sought an extension because he anticipated undergoing

knee surgery that would require 5-8 weeks of physical therapy. See Mot. for Leave to File for an

Extension at 1, Dkt. 105. Since then, he has continued to file motions, leading the Court to believe

he is capable of timely filing a notice of appeal. See, e.g., Mot. to Expedite, Dkt. 110.

31 CONCLUSION

For the foregoing reasons, the Court will grant the defendants’ Motion for Summary

Judgment and deny Groenendal’s Cross-Motion for Summary Judgment and various other

motions. A separate order consistent with this decision accompanies this memorandum opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge March 27, 2024

32