Neuman v. United States of America

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
CHARLES NEUMAN, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-cv-0719 (KBJ)
)
UNITED STATES OF AMERICA, et al., )
)
)
Defendants. )
)

MEMORANDUM OPINION

Pro se Plaintiff Charles Neuman (“Plaintiff” or “Neuman”) has brought the

instant action against the United States, the Department of Justice, and U.S.

Immigration and Customs Enforcement (collectively “Defendants”) under the Freedom

of Information Act (FOIA), 5 U.S.C. § 552 (2012), to pursue records related to his 2009

criminal conviction for a series of crimes arising out of the operation of a counterfeiting

ring. Defendants provided certain documents to Neuman in response to a FOIA request,

but some of the pages were heavily redacted. Neuman’s lawsuit alleges that Defendants

have wrongfully withheld information contained in twenty-five of the responsive

documents.

Before this Court at present is Defendants’ motion for summary judgment, which

maintains that all responsive documents have been released to Plaintiff and that

Defendants were entitled to withhold portions of the documents under FOIA

Exemptions 6, 7(C), 7(E), and 7(F), and also under Privacy Act Exemption (j)(2). In

1
his opposition, Plaintiff responds only to Defendants’ invocation of Exemption s 7(C)

and 7(E), leaving this Court to conclude that Plaintiff has conceded the applicability of

FOIA Exemptions 6 and 7(F) and Privacy Act Exemption (j)(2). Moreover, while this

Court is persuaded that FOIA Exemption 7(E) has been properly applied, this Court is

not in a position to determine the validity of Defendant’s invocation of Exemption

7(C)—the paucity of the record and the unsatisfactory nature of Defendants’ Vaughn

index render it impossible to determine whether that exemption is appropriate.

Consequently, Defendants’ motion for summary judgment will be GRANTED IN

PART and DENIED IN PART, and this Court will order Defendants to submit for in

camera review certain documents—in both redacted and unredacted form—as well as an

updated Vaughn index that more precisely lays out the reason behind each redaction.

As the separate order accompanying this memorandum opinion establishes, once

Defendants have satisfied these threshold requirements, they will be permitted to

resubmit their motion for summary judgment with respect to the withholdings that are

based on Exemption 7(C).

I. BACKGROUND

The Freedom of Information Act request underlying the present litigation stems

from Plaintiff’s conviction in January of 2009 of a host of crimes related to the

operation of a counterfeit ring, including the crime of being a felon-in-possession of a

firearm in violation of 18 U.S.C. §§ 922(g)(1). (Compl., ECF No. 1, at 6.) 1 On May

21, 2012, Plaintiff filed a FOIA request with U.S. Immigration and Customs

Enforcement (“ICE”), which was the investigating agency behind Plaintiff’s 2009

1
Page numbers throughout this Opinion refer to those that the Court’s electronic filing system assigns.

2
convictions. (Id. ¶ 6.) Plaintiff requested “all information in [ICE’s] possession that

involves [ICE’s] investigation of me for any and all criminal conduct [,]” as well as all

information in the agency’s possession relating to the particular case that resulted in

Plaintiff’s 2009 conviction. (Id. ¶ 7.)

Plaintiff’s belief that certain potentially exculpatory evidence was unlawfully

withheld during his trial in 2009 apparently was the motivation behind this FOIA

request. In particular, Plaintiff contends that a witness at his trial had provided

information to ICE officials during the pre-trial investigation that suggested Plaintiff

could not have been in possession of the gun that led to his conviction of being a felon-

in-possession of a firearm (id. ¶¶ 12-13), and that this exculpatory information was not

provided to Plaintiff prior to trial, in violation of his statutory and constitutional rights

(id. ¶ 15). 2 Plaintiff has sought to utilize the FOIA process as a means of unearthing

that allegedly exculpatory evidence.

On October 15, 2012, ICE released 80 documents responsive to Plaintiff’s FOIA

request, totaling 207 pages of responsive material. (FOIA Response Letter (Oct. 15,

2012), Ex. 4 to Defs.’ Mot. for Summ. J., ECF No. 17-1, at 72.) Every page was

partially redacted. (Id.) ICE claimed that these redactions were based on four statutory

disclosure exemptions: FOIA’s Exemptions 6, 7(C), and 7(E) and the Privacy Act’s

Exemption (j)(2). (Id. at 72-73.) On November 5, 2012, Plaintiff filed an

administrative appeal, challenging the heavy redaction of twenty-five of the released

documents, but ICE determined on review that those documents were properly redacted.

(FOIA Response Letter (Jan. 8, 2013), Ex. 7 to Defs.’ Mot. for Summ. J., ECF No. 17-1
2
Plaintiff argues that the failure to turn over this evidence constitutes a violation of the Jencks Act, 18
U.S.C. § 3500 (2006), and Brady v. Maryland, 373 U.S. 83 (1963). The merits of this argument is not
at issue in the instant case.

3
at 81-82). 3 Thereafter, Plaintiff filed the instant FOIA lawsuit, disputing the validity of

ICE’s redactions. 4

On December 16, 2013, Defendants filed a motion for summary judgment.

(Defs.’ Mot. for Summ. J. (“Defs.’ Mot.”), ECF No. 17.) This motion includes an

affidavit and various exhibits that are intended to clarify the reasoning behind the

disputed redactions. First, Defendants argue that the disclosure provisions of the

Privacy Act do not apply to the particular records at issue her e and thus full disclosure

is not required. (Defs.’ Mem. in Supp. of Mot. for Summ. J. (“Defs.’ Mem.”), ECF No.

17, at 21-22.) Second, Defendants assert that FOIA Exemptions 6 and 7(C) are

applicable because “the substantial privacy interests of law enfo rcement agents and

other individuals” outweigh “the non-existent public interest.” (Id. at 29.) Third,

Defendants assert that they properly withheld various “database codes, case numbers,

and numeric references” under Exemption 7(E). (Id. at 30.) Finally, Defendants claim

that any information identifying third parties falls under Exemption 7(F) because such

information “could put them and their families at great risk of physical danger.” ( Id. at

32.)

Plaintiff submitted his opposition to Defendants’ summary judgment motion on

February 10, 2014, arguing that there remains a genuine dispute regarding whether

Defendants properly invoked FOIA Exemptions 7(C) and 7(E). (Pl.’s Opp’n to Defs.’

Mot. (“Pl.’s Opp’n”), ECF No. 19, at 1.) Defendants’ summary judgment motion has

3
According to the descriptions that appear in the complaint and in Defendants’ Vaughn index, the
twenty-five documents at issue in this case are numbered 38, 41, 43, 49 -54, and 65-80. (See Compl.
¶ 9; Vaughn Index, Ex. 1 to Defs.’ Mot. for Summ. J., ECF No. 17-1, at 21-63.)
4
Shortly after this action was filed, ICE reviewed these documents a third time and decided that more
of the content could be released. (Defs.’ Statement of Material Facts, ECF No. 17 ¶¶ 17-18). However,
the agency maintains that the remaining redactions are permitted under established exemptions to
FOIA.

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been fully briefed, and is now ripe for this Court’s review.

II. LEGAL STANDARDS

A. The FOIA And Exemptions 6 And 7

The FOIA “was enacted to facilitate public access to Government documents” in

order to “pierce the veil of administrative secrecy and to open agency action to the light

of public scrutiny.” Dep’t of State v. Ray, 502 U.S. 164, 173 (1991) (internal quotation

marks and citation omitted). Pursuant to the text of the FOIA, “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.” See 5 U.S.C.

§ 552(a)(3)(A). Notably, despite the clear “prodisclosure purpose” of the statute, Nat’l

Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004), the FOIA also

contains nine exemptions—i.e., specified circumstances under which disclosure is not

required. 5 U.S.C. § 552(b). These exemptions “must be narrowly construed.” Dep't

of Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). Moreover, “the

strong presumption in favor of disclosure places the burden on the agency to justify the

withholding of any requested documents.” Ray, 502 U.S. at 173.

Two FOIA Exemptions are at issue here: Exemptions 6 and 7. Exemption 6

permits the withholding of “personnel and medical files and similar files the disclosure

of which would constitute a clearly unwarranted invasion of personal privacy[.]” 5

U.S.C. § 552(b)(6). Exemption 7 covers a broad array of materials relating to “records

or information compiled for law enforcement purposes[.]” Id. § 552(b)(7). This is not

a blanket exemption; instead, law enforcement materials are only exempted from

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disclosure if they meet one of six further requirements.

Two of those further requirements—labeled 7(C) and 7(E)—relate to the

redactions at issue in this case. Exemption 7(C) covers information that “could

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

Id. § 552(b)(7)(C). In order to determine whether information was validly withheld

under Exemption 7(C), the Court must balance the privacy interests of the affected

party with the public’s interest in the information. See Favish, 541 U.S. at 172 (“The

statutory direction that the information not be released if the invasi on of personal

privacy could reasonably be expected to be unwarranted requires the courts to balance

the competing interests in privacy and disclosure.”); accord Schrecker v. DOJ, 254 F.3d

162, 166 (D.C. Cir. 2001). 5 Exemption 7(E) covers information that “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[.]” 5 U.S.C.

§ 552(b)(7)(E).

B. Summary Judgment In FOIA Cases

Federal Rule of Civil Procedure 56 provides that summary judgment shall be

granted where “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” The moving party bears the burden of proving

that they are entitled to summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 256 (1986). In the FOIA context, a district court reviewing a motion for summary

5
“[T]he standard for evaluating a threatened invasion of privacy interests resulting from the disclosure
of records compiled for law enforcement purposes is somewhat broader than t he standard applicable to
personnel, medical, and similar files.” DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749,
756 (1989). As such, any information that satisfies Exemption 7(C)’s standard is also likely to satisfy
the standard for Exemption 6.

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judgment conducts a de novo review of the record, and the responding federal agency

bears the burden of proving that it has complied with its obligations under the FOIA.

See 5 U.S.C. § 552(a)(4)(B); see also In Def. of Animals v. Nat'l Insts. of Health, 543 F.

Supp. 2d 83, 92–93 (D.D.C. 2008). Because the court must analyze all underlying facts

and inferences in the light most favorable to the FOIA requester, see Willis v. DOJ, 581

F. Supp. 2d 57, 65 (D.D.C. 2008), summary judgment for an agency is only appropriate

after the agency proves that it has “fully discharged its [FOIA] obligations.” Moore v.

Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996)).

The agency may prove compliance with the FOIA through affidavits from

officials within the relevant agency. See Defenders of Wildlife v. U.S. Border Patrol,

623 F. Supp. 2d 83, 87 (D.D.C. 2009); Robinson v. Att’y Gen. of U.S., 534 F. Supp. 2d

72, 78 (D.D.C. 2008). Such affidavits alone may justify a grant of summary judgment

so long as they “describe the documents and the justifications f or nondisclosure with

reasonably specific detail, 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.” Military Audit Project v. Casey, 656

F.2d 724, 738 (D.C. Cir. 1981) (footnote omitted). The agency may also opt to submit

the withheld material for review by the Court in camera, or it may submit a listing of

the material that was withheld in response to a FOIA request, along with a specific

statement of the reasons for the withholding. See Judicial Watch, Inc. v. FDA, 449 F.3d

141, 145-46 (D.C. Cir. 2006) (describing purpose and requirements of a Vaughn index).

While the pleadings of pro se parties are to be “liberally construed, and a pro se

complaint, however inartfully pleaded, must be held to less stringent standards than

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formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

curiam) (internal quotation marks and citations omitted), “[t]his benefit is not . . . a

license to ignore the Federal Rules of Civil Procedure[.]” Sturdza v. United Arab

Emirates, 658 F. Supp. 2d 135, 137 (D.D.C. 2009) (citation omitted). This means that,

in FOIA cases as elsewhere, a pro se plaintiff must meet his burden of proving that

there exists a genuine dispute as to a material fact to survive a motion for summary

judgment. See, e.g., Brillhart v. FBI, 869 F. Supp. 2d 12, 17 (D.D.C. 2012) (granting

summary judgment in a FOIA case where a pro se plaintiff failed to prove genuine

dispute of material fact as to adequacy of defendant’s search for documents) ; see also

McCauley v. Salazar, No. 11-2296, 2014 WL 1500048, at *3 (D.D.C. Apr. 17, 2014)

(granting summary judgment where pro se plaintiff failed to prove there existed a

genuine dispute of material fact).

III. DISCUSSION

To justify the redactions that were made with respect to the documents

Defendants produced in response to Plaintiff’s FOIA request, Defendants have invoked

several exemptions from the laws governing disclosure of documents—only some of

which are currently in dispute. Defendants claim to have withheld information on the

basis of FOIA Exemptions 6, 7(C), 7(E), and 7(F), as well as Privacy Act Exemption

(j)(2), but in his opposition to Defendants’ summary judgment motion, Plaintiff

responds only to Defendants’ arguments regarding the applicability of FOIA

Exemptions 7(C) and 7(E). (See Pl.’s Opp’n at 2-4.) This Court construes Plaintiff’s

failure to respond to Defendants’ claim that documents were properly redacted under

FOIA Exemptions 6 and 7(F) and Privacy Act Exemption (j)(2) as a concession that

8
these exemptions were properly invoked, and summary judgment will be entered in

Defendants’ favor with respect to the withholdings that were made pursuant to these

exemptions. See Gamboa v. Exec. Office for U.S. Att’ys, No. 12-1220, 2014 WL

4219724, at *7 (D.D.C. Aug. 26, 2014) (“Absent any opposition from plaintiff . . . the

Court treats their arguments as conceded.”); Augustus v. McHugh, 870 F. Supp. 2d 167,

172 (D.D.C. 2012) (finding that, after failing to respond to agency’s justifications,

Plaintiff’s “arguments will be deemed conceded, and summary judgment will be en tered

in favor of the Secretary”); Brillhart, 869 F. Supp. 2d at 15 (“Plaintiff does not

challenge, and thus concedes, defendant’s properly documented reasons for redacting

information[.]”).

Turning to the only two disputed exemption grounds —FOIA Exemptions 7(C)

and 7(E)—this Court accepts Defendants’ argument that Exemption 7(E) was properly

applied but concludes that the record is insufficient to permit a ruling on the

applicability of Exemption 7(C) at this time, as explained further below.

A. Exemption 7(C)

As previously noted, Exemption 7(C) permits the withholding of law

enforcement information that “could reasonably be expected to constitute an

unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). In order to

determine whether information was validly withheld under Exemption 7(C), the Court

must balance the privacy interest of the affected party with the public ’s interest in the

information, see Favish, 541 U.S. at 172. Defendants assert that unnamed third parties

have a privacy interest that justifies the redactions here because “[r]eleasing their

identities and information . . . would place each of these persons in such a position that

9
they may suffer undue invasions of privacy, harassment and humiliation from disclosure

of their identities in a law enforcement investigatory file.” (Defs.’ Mem. at 29.)

However this contention is purely conclusory; the materials that Defendants submit in

support of their summary judgment motion do not even speak to the privacy interests at

stake, much less establish that releasing the information would jeopardize any such

interests.

Defendants have submitted (1) an affidavit from Catrina Pavlik-Keenan, Director

of ICE’s FOIA office (Decl. of Catrina Pavlik-Keenan (“Pavlik-Keenan Decl.”), ECF

No. 17-1, at 2-20.); (2) a Vaughn index listing the documents, the number of pages, and

the exemptions that are applicable to each document (Vaughn Index, Ex. 1 to Defs.’ Mot.,

ECF No. 17-1, at 22-63); and (3) various administrative documents related to Plaintiff’s

initial request for documents and subsequent administrative appeal (see Exs. 2-8 to

Pavlik-Keenan Decl., ECF No. 17-1, at 65-87). The affidavit lays out the procedural

history of Plaintiff’s FOIA request, lists the various exemptions that ICE has applied,

and then attempts to explain why those exemptions have been applied in this case.

(Pavlik-Keenan Decl. ¶¶ 11-52.) However, the affidavit adopts the same conclusory

tone as Defendants’ motion for summary judgment—often relying on a restatement of

the relevant legal standard as evidence of an exemption’s applicability. (See, e.g.,

Pavlik-Keenan Decl. ¶ 44 (“The release of this information in the context of these

records could reasonably cause these individuals humiliation, embarrassment, hostility

which could constitute a clearly unwarranted invasion of privacy.”).)

Defendants’ Vaughn index fares no better for purposes of the instant motion.

The Vaughn index contains four columns: the first column contains the page numbers

10
of the relevant documents; the second column lists each document by number; the third

column states the exemptions applicable to each document; and the fourth column

provides additional statements related to the exemptions listed in the third column.

Although the Vaughn index lists all eighty documents that Defendants found responsive

to Plaintiff’s FOIA request, in the second column it identifies each and every document

as a “Report of Investigation” or “ROI”. (See Vaughn Index.) Thus, it is entirely

unclear what sort of information each document contains even in the broadest terms.

As noted, the Vaughn index does reveal that the documents range in length from one to

six pages, which indicates that there is some difference in content between each

document. (Compare id. at 43 (listing six pages for ROI 043) with id. at 49 (listing one

page for ROI 054).) But a statement related to page length alone hardly qualifies as the

kind of “specific factual description of each document sought,” Smith v. DOL, 798 F.

Supp. 2d 274, 281 (D.D.C. 2011), that has been found to be sufficient to substitute for

submission of the documents themselves. 6

Significantly, in the third column of Defendants’ Vaughn index, the same three

FOIA exemptions are listed as applying to every document—Exemptions 6, 7(C), and

7(E)—and in the fourth column, the exact same boilerplate language is used to describe

the redactions in every document, despite the fact that all of the exemptions cited

presumably do not apply to every single redaction in every document. In this regard,

the Vaughn index presents a sort of wholesale description of the documents and

redactions with respect to the entire production, without connecting each exemption to

6
Although it is well established that the government can ordinarily submit a Vaughn index in lieu of
the documents at issue, see Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006), there is
also no question that the index must provide a description that is sufficiently detailed to permit the
Court to make the requisite analysis.

11
each redaction, and it thereby fails to provide any means for identifying or

distinguishing between any of the redactions contained in the responsive documents.

Although a Vaughn index has “no set form,” Lardner v. FBI, 852 F. Supp. 2d

127, 137 (D.D.C. 2012), it is well established that the agency’s listing must

nevertheless “enable the court and the opposing party to understand the withheld

information in order to address the merits of the claimed exemptions.” Judicial Watch,

Inc., 449 F.3d at 150. To this end, a Vaughn index should “provide ‘a relatively

detailed justification, specifically identifying the reasons why a particular exemption is

relevant and correlating those claims with the particular part of a withheld document to

which they apply[.]’” Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (quoting

King v. DOJ, 830 F.2d 210, 219 (D.C. Cir. 1987)). This last element—correlating the

justification with a specific part of a document—is especially important in a case such

as this one, where Plaintiff is not contesting every exemption; yet, these critical links

are entirely missing from the Vaughn index that Defendants have submitted to justify

the redactions at issue here.

What is more, this Court notes that the record contains only one of the twenty-

five partially redacted documents Plaintiff is challenging. When combined with the

inadequacy of the Vaughn index, the lack of access to the documents at issue means that

the Court cannot possibly determine the nature of the disputed documents, much less

evaluate the extent of the redactions that have purportedly been made to protect

personal privacy. As explained, an evaluation of Defendants’ application of Exemption

7(C) requires the Court to consider the strength of a third party’s privacy interest,

which, in turn, might depend on the the context in which the third party is mentioned .

12
However, with respect to the instant dispute, this Court has not been provided with

either a detailed description of the documents at issue or a copy of the redacted

materials.

Finally, there is some reason to question whether Defendants’ Exemption 7(C)

redactions are entirely appropriate. Based on what little information the record here

contains, Defendants may not be able to rely on the Exemption 7(C) privacy interest

argument with respect to at least one individual whose name has purportedly been

redacted because, according to Plaintiff, that individual’s name appears in at least one

of the redacted documents provided to him, perhaps as a result of an administrative

oversight. (See Compl. at ¶ 11.) 7 Plaintiff argues, for good reason, that Defendants

cannot reasonably contend that an “undue invasion[] of privacy, harassment and

humiliation” would result from this individual being identified elsewhere in that

document or in the other materials (Defs.’ Mem. at 29), and this Court notes that

Defendants have provided no other explanation for continuing to withhold information

pertaining to that individual.

As a result of the various deficiencies described, this Court concludes that it does

not have sufficient information to rule on the propriety of Defendants’ reliance on

Exemption 7(C), and will order that Defendants provide, for in camera review, copies

of the presumably small number of disputed documents that contain Exemption 7(C)

withholdings, in both their redacted and unredacted form. See PHE, Inc. v. DOJ, 983

F.2d 248, 252 (D.C. Cir. 1993) (“We have suggested that in camera review is

appropriate when agency affidavits are not sufficiently detailed to permit meaningful

7
This is not just any witness—the named witness is supposedly the person who Plaintiff alleges
provided potentially exculpatory information to Defendants. (Pl.’s Opp’n at 3.)

13
assessment of the exemption claims.”); see also Hall & Assocs. v. EPA, 846 F. Supp. 2d

231, 245 (D.D.C. 2012) (noting that in camera review is authorized by 5 U.S.C.

§ 552(a)(4)(B) and may be performed at the discretion of the trial court). 8 This Court

will further order Defendants to provide a revised Vaughn index that identifies which

FOIA exemptions apply to which redactions with respect to the entire production. The

revised index should also provide a context-specific justification for the application of

Exemption 7(C), stating Defendants’ position regarding exactly why disclosure would

compromise an individual’s privacy interests—it is not enough to copy and paste the

same boilerplate language each time that exemption is invoked. Such specificity is

especially important here because certain privacy interests may no longer exist in light

of Defendants’ possibly inadvertent disclosure of the identity of at least one person

whose name appears in the documents.

B. Exemption 7(E)

As previously explained, Exemption 7(E) permits the withholding of law

enforcement information that “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[.]” 5 U.S.C. § 552(b)(7)(E). In their motion

for summary judgment, Defendants state that they have used this exemption to withhold

“law enforcement database codes, case numbers, and numeric references ” (Defs.’ Mem.

at 30), and Plaintiff asserts in his opposition that he is not interested in any such

8
The total number of documents at issue in this case is relatively small—only 25 documents totaling 73
pages. The number of documents to be provided for in camera review may turn out to be even smaller,
given that this Court only intends to evaluate those documents that contain the information that has
been withheld on the basis of Exemption 7(C).

14
numbers; instead, he cares only about the substantive content of the documents that

have been redacted (see Pl.’s Opp’n at 3 (stating that Plaintiff “is not seeking any TECS

code, reference code, agents’ names, etc.”)). It is entirely possible that Defendants’

boilerplate Vaughn index and blanket references to Exemptions 7(C), 7(E), and 7(F)

have led to confusion regarding precisely what information has been withheld. In any

event, the kinds of information that Defendants say has been redacted under Exemption

7(E)—which Plaintiff asserts that he is not requesting—is precisely the type of

technical information that Exemption 7(E) protects. Therefore, to the extent that such

information has been redacted from the contested documents (and, again, Defendants’

recitation of the same generalized description for each document prevents this Court

from being able to identify any specific instances in which Exemption 7(E) was

invoked), there is no genuine dispute that Exemption 7(E) applies.

Plaintiff does make one argument against application of this exemption that

warrants addressing, notwithstanding the concession above. Plaintiff claims that he

already has some of the technical information that ICE has redacted, such as the names

of certain law enforcement agents, and therefore, Plaintiff argues, the agency’s need to

withhold such information is rendered “moot.” (Id. at 3.) This Court construes

Plaintiff’s characterization as an argument that the redacted information has already

entered the public domain and is therefore non-exemptible.

It is clear beyond cavil that information in the public domain cannot be exempted

from the FOIA’s disclosure requirement. Davis v. DOJ, 968 F.2d 1276, 1279 (D.C. Cir.

1992). For the public domain exception to apply, however, Plaintiff must point to

“specific information in the public domain that appears to duplicate that being

15
withheld.” Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983). Here,

Plaintiff claims that he already obtained the codes, numbers, and references that

Defendants have withheld pursuant to Exemption 7(E) through an ICE investigation

report that was released “[p]rior to Plaintiff’s criminal trial in 2009” (Pl.’s Opp’n at

3)—an argument that suggests that the information was revealed as a result of trial -

related discovery obligations. Unfortunately for Plaintiff, with respect to reliance on

the public domain exception to an otherwise applicable FOIA exemption,

“constitutionally compelled disclosure to a single party simply d oes not enter the public

domain.” Cottone v. Reno, 193 F.3d 550, 556 (D.C. Cir. 1999). 9

Finally, there appears to be a strong possibility that some information, such as

the names of law enforcement officials or other parties, may be exemptible under both

FOIA Exemption 7(C) and Exemption 7(E). Given this Court’s finding that in camera

review is necessary to determine the applicability of Exemption 7(C), Defendants shall

inform the Court, through their updated Vaughn index, whether and to what extent

Exemption 7(E) forms an independent basis for an Exemption 7(C) redaction. Such

specificity will permit the Court to determine the extent to which the information can be

withheld on Exemption 7(E) grounds even if the Exemption 7(C) basis has not been

adequately invoked with respect to a particular redaction.

IV. CONCLUSION

For the foregoing reasons, the Court will GRANT IN PART and DENY IN

PART Defendants’ motion for summary judgment. There is no genuine issue of

material fact in this case regarding Defendants’ invocation of FOIA Exemptions 6,
9
Plaintiff’s argument may have had some traction if the redacted information had been introduced as
evidence during Plaintiff’s trial, see Cottone, 193 F.3d at 554-56, but Plaintiff states only that
Defendants “released” the report to him “[p]rior to” his trial. (Pl.’s Opp’n at 3.)

16
7(E), and 7(F) and Privacy Act Exemption (j)(2); therefore, this Court will enter

judgment in Defendants’ favor with respect to the redactions that are based on those

exemptions. With respect to application of Exemption 7(C), Defendants have thus far

failed to meet their obligations under the FOIA, so, as set forth in the separate order

that accompanies this opinion, the Court will require Defendants to submit the

following: (1) redacted versions of each of the documents at issue in this case that

contain redactions based on Exemption 7(C), (2) unredacted versions of those same

documents, which will be reviewed in camera, and (3) a revised Vaughn index that

clearly lays out which exemption applies to which redaction and the reason for that

exemption’s applicability. 10

DATE: September 30, 2014 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge

10
A revised index will not only permit the Court to identify clearly which redactions are based on
Exemption 7(C), but will also assist the Cour t and the parties in determining which of the other
redactions are grounded on bases that have either been conceded as proper or are authorized by the
Court in this opinion.

17