Garcia v. Exec. Office for U.S. Attorneys
Garcia v. Exec. Office for U.S. Attorneys
Opinion of the Court
Plaintiff Santos Maximino Garcia, proceeding pro se, brought this action under the Freedom of Information Act ("FOIA"),
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.
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).
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."
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 *85Marino v. Drug Enforcement Administration,
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,
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,
*86LEGAL 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,
"FOIA cases typically and appropriately are decided on motions for summary judgment." Georgacarakos v. FBI,
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,
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,
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 *87material doubt that its search was "reasonably calculated to uncover all relevant documents." Weisberg v. U.S. Dep't of Justice,
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,
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"
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,
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,
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."
"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.,
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 *89under Exemption 6 because it contains 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,
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 *90under 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,
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,
In sum, because the disclosure of the third-party identifying information would "constitute a clearly unwarranted invasion of personal privacy,"
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 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."
"[P]rivacy interests are particularly difficult to overcome when law enforcement information regarding third parties is implicated." Martin,
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,
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,
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.
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 *92the 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."
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 confidential information was provided "during the course of a legitimate law enforcement investigation" into the activities of MS-13. Williams,
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."
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."
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."
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, 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),
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."
*94Here, 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."
The documents withheld are attorney work product of the sort "routinely protected in discovery," and therefore "fall[ ] within the reach of Exemption 5." Burka,
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,
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,
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."
*95Sussman v. U.S. Marshals Serv.,
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,
CONCLUSION
For the foregoing reasons, EOUSA's motion for summary judgment will be granted. A separate order has been issued on this date.
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),
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,
Reference
- Full Case Name
- Santos Maximino GARCIA v. EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS
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- 2 cases
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- Published