Abdelfattah V.U.S. Immigration and Customs Enforcement

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

OSAMA ABDELFATTAH,

Plaintiff,

v. Civil Action 07-1858 (RCL)

U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT,

Defendant.

MEMORANDUM OPINION

Plaintiff pro se Osama Abdelfattah brings this suit against defendant U.S. Immigration

and Customs Enforcement (“ICE”), alleging violations of the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552. Before the Court is ICE’s renewed motion for summary judgment

[Dkt. # 16]. Upon consideration of the motion, plaintiff’s opposition thereto, and the record of

this case, the Court concludes that the motion must be granted.

I. FACTUAL BACKGROUND

On August 31, 2006, the Information Disclosure Unit of ICE received an email from

Abdelfattah, requesting all records about plaintiff that were held in any record system under the

jurisdiction of ICE, including Treasury Enforcement Communications System (TECS) records

and investigation records. Def.’s Mot. for Summ. J (“Def.’s Mot.”), Decl. of Reba A. McGinnis,

¶ 5. ICE searched for records using plaintiff’s name and date of birth as search criteria, and

identified 113 responsive records. Id. ¶ 6.

In a letter dated September 15, 2006, ICE notified counsel for Abdelfattah that it would

release eighty-nine pages of records, with certain information redacted pursuant to FOIA
Exemptions 2 and 7(C), and would withhold the other twenty-four pages pursuant to Exemptions

2, 5, and 7(C). Id. ¶ 14.

Abdelfattah filed this suit on October 15, 2007. He alleged that he had filed an

administrative appeal of the redactions and withholdings, First Am. Compl. ¶ 17, but ICE moved

to stay the proceedings on the grounds that the U.S. Department of Homeland Security (DHS)

had not received plaintiff’s appeal. Abdelfattah submitted a new appeal, which was denied on

April 9, 2008. Def.’s Mot., Ex. A (Letter from Victoria Newhouse, Attorney-Advisor, DHS

(Apr. 9, 2008)). DHS did, however, determine that ICE’s claim to withhold certain records

pursuant to Exemption 5 had been in error, and withdrew that claim. Id.

ICE moved for summary judgment [Dkt. # 9]. After the Supreme Court decided Milner

v. Department of Navy, 131 S.Ct. 1259 (2011), holding that FOIA Exemption 2 was substantially

smaller than the D.C. Circuit had previously understood it to be, the Honorable Henry H.

Kennedy, Jr. ordered supplemental briefing. ICE reprocessed the responsive records, and

released some information that had previously been withheld pursuant to Exemption 2. Def.’s

Renewed Mot. for Summ. J, Decl. of Catrina Pavlik-Kennan, ¶ 11. Other information withheld

under that exemption was re-classified as being withheld under Exemption 7(E). Id. ¶ 12. ICE

filed a renewed motion for summary judgment, which is now ripe for determination.

II. LEGAL STANDARD

Summary judgment should be granted when the materials in the record show “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)–(c). This standard requires more than the mere existence of some

factual dispute between the parties: “the requirement is that there be no genuine issue of material

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fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). “A fact is ‘material’ if a

dispute over it might affect the outcome of a suit under the governing law.” Holcomb v. Powell,

433 F.3d 889, 895 (D.C. Cir. 2006). “An issue is ‘genuine’ if the evidence is such that a

reasonable jury could return a verdict for the non-moving party.” Doe v. IRS, 706 F. Supp. 2d 1,

5 (D.D.C. 2009) (citing Anderson, 477 U.S. at 248).

This Court reviews a motion for summary judgment arising from an agency’s decision to

withhold or disclose documents under FOIA de novo. 5 U.S.C. § 552(a)(4)(B); see also Mead

Data Ctr., Inc. v. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). In responding to a

FOIA request, an agency must conduct a reasonable search for responsive records. Oglesby v.

U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C.Cir.1990); Weisberg v. U.S. Dep’t of Justice, 705 F.2d

1344, 1352 (D.C. Cir.1983). Furthermore, to be entitled to summary judgment, a defendant must

demonstrate that responsive documents that were not produced are exempt from disclosure,

Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 368 (D.C. Cir.1980), and that any information

redacted was either exempt from disclosure or “inextricably intertwined with” exempt

information. Mead Data, 566 F.2d at 260 (citations and internal quotation marks omitted).

To meet its burden, a defendant may rely on relatively detailed and nonconclusory

affidavits or declarations. McGehee v. CIA, 697 F.2d 1095, 1102 (D.C. Cir. 1983). Such agency

declarations are “accorded a presumption of good faith.” Negley v. FBI, 169 F. Appx. 591, 594

(D.C. Cir. 2006). Summary judgment in favor of a defendant is justified if these materials

“demonstrate that the information withheld logically falls within the claimed exemption, and are

not controverted by either contrary evidence in the record nor by evidence of agency bad faith.”

Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009).

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 III. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

ICE asserts that, after conducting a reasonable search, it has disclosed all responsive,

non-exempt information to Abdelfattah, and that, as such, it is entitled to judgment as a matter of

law. The Court understands Abdelfattah to make two arguments in response. First, Abdelfattah

argues that ICE cannot withhold any information pursuant to FOIA Exemption 7, which applies

to information compiled for law enforcement purposes, because he is a law-abiding person and

could not be the subject of any legitimate investigation by law enforcement authorities. Second,

Abdelfattah argues that ICE has not met its burden to show that any non-exempt information that

has been withheld is not reasonably segregable from exempt information. The Court considers

these arguments in turn.

FOIA Exemption 7 protects from disclosure “records or information compiled for law

enforcement purposes” that satisfy any of five criteria. 5 U.S.C. § 552(b)(7). Exemption 7(C),

which covers information the release of which “could reasonably be expected to constitute an

unwarranted invasion of personal privacy,” id. § 552(b)(7)(C), and Exemption 7(E), which

applies to information the release of which “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,” id. § 552(b)(7)(E), have been claimed in this case.

The threshold question is whether the information in question was in fact “compiled for

law enforcement purposes.” “A record is deemed to have been created or compiled for a law

enforcement purpose only if (1) it arose from an investigation ‘related to the enforcement of

federal laws or to the maintenance of national security’ (the ‘nexus’ requirement), and (2) ‘the

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nexus between the investigation and one of the agency’s law enforcement duties [is] based on

information sufficient to support at least a colorable claim of its rationality.’” Simon v. U.S.

Dep’t of Justice, 980 F.2d 782, 783 (D.C. Cir. 1992) (quoting Pratt v. Webster, 673 F.2d 408,

420–21 (D.C. Cir. 1982)). Abdelfattah invokes the second portion of that test, arguing that ICE

has not supplied sufficient facts to allow the Court to grant summary in its favor. He is incorrect.

“[W]here an agency ‘specializes in law enforcement, its decision to invoke exemption 7

is entitled to deference.’” Lardner v. U.S. Dep’t of Justice, 638 F. Supp. 2d 14, 31 (D.D.C. 2009)

(quoting Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998)). However, if the

agency’s declarations “‘fail to supply facts’ in sufficient detail to apply the Pratt rational nexus

test, then a court may not grant summary judgment for the agency.” Campbell, 164 F.3d at 32

(citing Quinon v. Fed. Bureau of Investigation, 86 F.3d 1222, 1229 (D.C. Cir. 1996)). ICE’s

declaration indicates that “the records at issue were compiled by ICE in the context of its

investigation into suspected violations of federal immigrations or customs law.” Decl. of Catrina

Pavlik-Kennan, ¶ 16. This unrebutted assertion satisfies the threshold inquiry into whether the

documents were compiled for law enforcement purposes. See, e.g., Willis v. Dep’t of Justice,

581 F. Supp. 2d 57, 75 (D.D.C. 2008); but see Benavides v. Bureau of Prisons, 774 F. Supp. 2d

141, 147 (D.D.C. 2011) (holding that when a declaration “neither identifies a particular

individual or incident subject to an investigation nor connects a particular individual or incident

to a potential violation of law,” the Court cannot grant summary judgment under Exemption 7).

Abdelfattah does not dispute the FBI’s claim that the redacted information “could

reasonably be expected to constitute an unwarranted invasion of personal privacy,” id. §

552(b)(7)(C), or “would disclose techniques and procedures for law enforcement investigations

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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,” id. §

552(b)(7)(E). ICE has redacted the names and other identifying information of federal

government employees and third parties pursuant to Exemption 7(C). Decl. of Catrina Pavlik-

Kennan, ¶ 17. Pursuant to Exemption 7(E), it has redacted “program codes, investigative notes,

and internal instructions” which it asserts “would reveal both a law enforcement technique and

an internal investigative practice and could adversely affect future investigations and operations

by exposing the details and type of information the agency uses in the course of the investigation

and execution of a law enforcement operation or action.” Id. ¶ 20. Absent any argument to the

contrary, the Court is satisfied that this material meets the statutory standard for redaction.

Finally, the Court turns to Abdelfattah’s argument that reasonably segregable, non-

exempt information has not been released. The Court first notes that Abdelfattah offers nothing

but the conclusory assertion that this is so. The affidavit submitted by ICE indicates that the

documents have been “reviewed line-by-line to identify information exempt from disclosure or

for which a discretionary waiver of exemption could be applied.” Id. ¶ 22. Indeed, when the

documents were re-processed information that had previously been withheld from twenty-four

documents was released. Id. ¶ 23. “[A] statement representing that a ‘line-by-line- search was

conducted along with a sufficiently detailed Vaughn index and declarations enumerating the

reasons why each document was properly withheld is sufficient to fulfill the agency’s obligation

regarding segregability.” ViroPharma Inc. v. Dep’t of Health & Human Servs., 2012 WL

892296, at *9 (D.D.C. Mar. 16, 2012). Because ICE has provided both, it is entitled to summary

judgment.

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 IV. CONCLUSION

For the foregoing reasons, it is this 30th day of March 2012, hereby

ORDERED that the defendant’s renewed motion for summary judgment [Dkt. # 16] is

GRANTED.

Royce C. Lamberth
Chief Judge
United States District Court
for the District of Columbia

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