Groenendal v. EOUSA, No. 20-1030, 2024 WL 1299333 (D.D.C. Mar. 27, 2024) (Friedrich, J.)

Groenendal v. EOUSA, No. 20-1030, 2024 WL 1299333 (D.D.C. Mar. 27, 2024) (Friedrich, J.)

Re:  Requests for records concerning plaintiff’s criminal case

Disposition:  Granting defendants’ motion for summary judgment; denying plaintiff’s cross-motions for summary judgment, discovery, and in camera inspection

• Litigation Considerations, Adequacy of Search:  “The Court concludes that EOUSA and ICE performed adequate searches for records responsive to [plaintiff’s] FOIA requests.”  “The Court has reviewed in detail all four declarations and relevant exhibits concerning [plaintiff’s] eight FOIA requests and concludes that EOUSA’s and ICE’s searches were adequate.”  “As to EOUSA Groups 1 through 5, [EOUSA] 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 [plaintiff].”  “Although the Court need not recount it here, as to each Group of FOIA requests, [EOUSA] provides meticulous details about the relevant record-keeping systems (including electronic and hardcopy sources), the appropriate record custodians, and search terms.”  “[Plaintiff’s] requests are challenging to parse, but EOUSA deployed search terms reasonably calculated to yield potentially responsive records.”  “[EOUSA] further explains how the U.S. Attorney’s Office reviewed (and in the cases of Groups 1, 3, and 5, re-reviewed) responsive records.”  “As to EOUSA Group 6, [EOUSA] accurately represents that [plaintiff’s] request lacks any explicit description of records sought.”  “Indeed, [plaintiff] apparently filed this FOIA request to share that he ‘discovered a recent Sixth Circuit case that should be shared with the various government agencies that [he] ha[s] written to recently’ – a plainly inappropriate use of FOIA procedures.”  “EOUSA’s conclusion that it had no basis to search for responsive records was thus reasonable under the circumstances.”  “As to [plaintiff’s] FOIA requests to ICE, [ICE] 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, . . . he elaborates on the specific procedures used to respond to ICE Groups 1, 2, and 3 . . . .”  “Although ICE Group 1 is not at issue here, [ICE] represents that ‘[Homeland Security Investigation Program (“HIS”)] 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 [plaintiff] was convicted.”  “[ICE] also details the electronic and hardcopy systems searched, the search terms used, and the review of responsive records.”  “As to ICE Groups 2 and 3, [ICE] again represents that ‘HSI was the directorate likely to have responsive records,’ and [ICE] further describes the process by which the agency determined that ‘no new [responsive] records involving’ [plaintiff] ‘were generated since January 2014,’ meaning ICE had no additional records to disclose that were not already disclosed in ICE Group 1.”  “‘[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.’”  “This ‘line-by-line’ review revealed that all ‘potentially responsive records’ to Groups 2 and 3 were already disclosed in response to Group 1.”  “[Plaintiff’s] numerous and repetitive FOIA requests are not models of clarity, but the [EOUSA] and [ICE] declarations assure the Court that both agencies have, in good faith, met their burden of producing a ‘reasonably detailed affidavit’ describing its process of searching and reviewing responsive records.”
  
  Responding to plaintiff’s arguments, the court finds 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.’”  Additionally, “[a]lthough 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, [plaintiff] points to the defendants’ ‘continued delay[s]’ during this litigation.”  “But the defendants’ requests for extensions, especially to permit adequate time to respond to [plaintiff’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.”  “Finally, [plaintiff] attempts to pinpoint three deficiencies in ICE’s search, but he is off the mark as to each.”  “First, contrary to [plaintiff’s] suggestion, ICE did not use the ‘[w]rong dates’ . . . .”  “Second, [plaintiff] incorrectly argues that ICE erred by relying ‘only’ on ‘the search term “[plaintiff’s name]”’ when it could have used ‘every name’ included in his Groups 2 and 3 requests.”  “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.’”
   
• Exemption 6; Exemption 7(C):  The court holds that “EOUSA’s withholdings were . . . proper.”  “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.”  “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.’”  “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 [plaintiff].”  “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.’”  “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,’ . . . and EOUSA has limited redactions to personally identifying information of non-public-facing employees, such as each employee’s ‘name, address, place of birth, employment history, and telephone number[]’” . . . .”
  
  “As to Group 5, EOUSA properly relies on Exemption 7(C) to withhold pornographic images of adult and children.”  The court finds that “the subjects of the adult pornography have privacy and reputational interests in not being associated with a child-pornography investigation.”  “Further, . . . 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.”
  
  Regarding plaintiff’s arguments, the court finds that “[a]dvancing no ‘compelling evidence’ beyond conspiratorial allegations of misconduct, . . . he cannot demonstrate a public interest outweighing the privacy interests at stake . . . .”  “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.”’”  “Here, the Supplemental . . . 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 [plaintiff’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.’”  “Here, the risk of harassment is perhaps even more acute given [plaintiff’s] penchant for prolific filings.”  “In all, ‘[t]his is enough to show foreseeable harm under Exemption 7(C).’”
   
• Exemption 3:  The court relates that, “[h]ere, EOUSA claims that Exemption 3 covers Exhibits 1 and 3 of its Group 5 response.”  “Exhibit 1 contains a 23-page ‘computer monitoring report’ containing ‘pornographic images’ that ‘are not labeled as children or adult.’”  “Exhibit 3 is 4 pages ‘of computer monitoring that contain child pornographic images saved to [plaintiff’s] computer.’”  “According to EOUSA, both Exhibits are exempt from disclosure under the Child Victims’ and Child Witnesses’ Rights Act, 18 U.S.C. § 3509, which ‘qualifies as an Exemption 3 withholding statute,’ . . . .”  “Under this statute, the disclosure of ‘the name or any other information concerning a child’ victim of a crime is prohibited.”  “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,’ . . . so no additional showing of foreseeable harm is needed . . . .”  “As to Exhibit 1, however, EOUSA falls short of justifying withholding under Exemption 3.”  “Although Exhibit 1 ‘contains pornographic images,’ . . . 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,’ . . . .”  “The plain language of 18 U.S.C. § 3509(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.”
   
• Exemption 7, Threshold:  Regarding “the remaining portions of the computer monitoring report collected during [plaintiff’s] supervised release,” the court observes that “[b]oth 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.’”  “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.”  “[T]he existence of ‘law enforcement purpose’ ‘is especially convincing in this case because’ [plaintiff] ‘explicitly sought records related to his own criminal prosecution.’”

• Exemption 7(E); Exemption 7(F):  The court relates that at issue are “the remaining portions of the computer monitoring report collected during [plaintiff’s] supervised release.”  The court relates that these records “were . . . 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.”  “Here, Exhibits 1 and 2 contain ‘website links with corresponding dates and times,’ ‘search engine hits,’ and ‘search terms.’”  “Public access to this information could ‘train potential violators.’”  “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’ [plaintiff] used attracted the attention of law enforcement.”  “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.” 
  
  “Further, EOUSA has satisfied the foreseeable-harm requirement.”  “‘Exemption 7(E) by its own terms already requires that an agency show a risk of foreseeable harm.’”  “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.”  “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.”
   
• Exemption 5, Deliberative Process Privilege:  The court relates that “[h]ere, EOUSA invokes Exemption 5 to withhold part of an email exchange between [an AUSA] and an ICE agent describing ‘a proposed plea offer.’”  “The Court concludes that the email redaction was proper under the deliberative-process privilege.”  “First, the communication is plainly ‘inter-agency,’ . . . as the sender is [an AUSA] . . . and the recipient is an ICE agent . . . .”  “Second, the redacted portion of the email is predecisional and deliberative.”  “[The AUSA’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 [plaintiff’s] case, in an effort to agree on an appropriate proposed plea offer.’”  “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 [plaintiff].”  “Further, the redacted email was deliberative.”  “[EOUSA] represents that the redacted communication ‘was prepared to help supervisors at the District formulate a final agency position about whether to extend [plaintiff] a plea offer.’”  “EOUSA thus reasonably concluded that the redaction was necessary to protect the agencies’ deliberations over the terms of a plea agreement.”  “EOUSA has also satisfied its burden of showing that release of these records would lead to foreseeable harm under 5 U.S.C. § 552(a)(8)(A)(i)(I).”  “‘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.’”
  
  “Here, the Supplemental [EOUSA] Declaration satisfactorily lays out the foreseeable harm from disclosing internal communications like [the AUSA’s].”  “[EOUSA] first outlines the ‘role’ of the redacted communication ‘in the relevant agency decisional processes.’”  “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.’”  “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.”  “Further, [EOUSA] highlights ‘the particular sensitivity of th[is] type[ ] of information.’”  “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.’”  “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.”
   
• Litigation Considerations, “Reasonably Segregable” Showing:  The court holds that “EOUSA and ICE have satisfied these requirements.”  “As to EOUSA, [EOUSA’s] 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.’”  “EOUSA’s Vaughn index also provides additional insight into its record-by-record review, including details about the scope of particular redactions and releases.”  “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.”
  
  “As to ICE, searches responsive to Groups 2 and 3 ‘did not produce any responsive records,’ so ‘there was no segregability analysis to conduct.’”  “ICE nevertheless conducted a segregability analysis of records responsive to ICE Group 1 for good measure.”  “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.”
   
• Litigation Considerations, Discovery & In Camera Inspection:  The court holds that “[plaintiff’s] pending motions for discovery [and] in camera review . . . all lack merit.”  “First, discovery is not warranted.”  “[Plaintiff] has introduced no credible evidence of bad faith, and EOUSA and ICE have persuaded the Court that their searches were adequate.”  “Second, and for similar reasons, in camera review is unwarranted.”  “[Plaintiff] advances no plausible ‘evidence of bad faith,’ and the agencies’ withholdings were proper, the Court concludes that in camera review is also ‘not necessary.’”