Ball v. USMS, No. 19-1230, 2021 WL 4860590 (D.D.C. Oct. 19, 2021) (Boasberg, J.)

Ball v. USMS, No. 19-1230, 2021 WL 4860590 (D.D.C. Oct. 19, 2021) (Boasberg, J.)

Re:  Requests for records concerning plaintiff's criminal case

Disposition:  Granting defendants' motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "The Court . . . upholds USMS's search."  The court relates that "Plaintiff first contends that USMS's search was unreasonable because it failed to specify its search terms."  The court finds that "USMS . . . actually has identified the search terms – Plaintiff's USMS and [Federal Identification] numbers – which were reasonable choices since [plaintiff's] request asked for 'any and all records whatsoever under [his name] and/or any other identifiers used in lieu of their name.'"  The court relates that "[plaintiff] also believes that USMS erred by searching in only one database:  the Justice Detainee Information System (JDIS)."  "USMS responds that its search was proper given that JDIS 'is the main electronic database that houses all USMS prisoner records,' including information from witnesses, medical professionals, and federal, state, and local entities."  Additionally, "[e]ven if USMS had those records, moreover, the agency notes that they would have turned up in JDIS; in fact, the released documents indicate no medical treatment besides a recurring prescription."  "The Court agrees [with defendants] . . . ."
   
• Exemption 3:  The court relates that "[r]elying on Exemption 3, ICE withheld the 'names and other information about child victims and witnesses.'"  "The relevant statute on which ICE relied is the Federal Victim and Witness Protection Act [("FVWPA")], 18 U.S.C. § 3509(d) – a recognized Exemption 3 withholding statute."  "The FVWPA prohibits the Government from disclosing documents in connection with a criminal proceeding that reveal 'the name or any other information concerning a child,' as well as information in those documents 'that concerns a child.'"  The court holds that "ICE's withholding was consistent with the statute and Exemption 3, and Plaintiff's arguments to the contrary cannot carry the day."
   
• Exemption 7, Threshold & Exemption 7(C):  The court holds that "[t]he application of Exemption 7(C) to [plaintiff's] material was correct."  The court relates that "[t]he agencies . . . redacted 'names and other personally identifiable information of law enforcement officers and other government officials involved in the criminal investigation of Plaintiff' and 'personally identifiable information relating to third parties, including relatives and suspected associates of Plaintiff.'"  "Because the Government successfully relies on Exemption 7(C) here, the Court need not address Exemptions 6 or 7(F), the latter of which USMS also invokes for the same material."
  
  First, the court relates that "[plaintiff] argues that its remaining withholdings in these categories should be rejected since it has already removed some other redactions."  The court finds that "[t]he fact that ICE is no longer withholding certain information, however, does not invalidate its continuing reliance on these exemptions to withhold other material."
  
  Next, the court finds that "Exemption 7(C) is appropriate because the relevant records were all 'compiled for law enforcement purposes.'"  "The records were generated in the course of investigating and detaining [plaintiff] and were located in databases used for law-enforcement activities."  "This supplies the necessary 'rational nexus between the investigation and one of the agency's law enforcement duties and a connection between an individual or incident and a possible security risk or violation of federal law' . . . ."
  
  Then, the court holds that "[t]he agencies correctly determined that disclosure of the personally identifiable information at issue here 'could reasonably be expected to constitute an unwarranted invasion of personal privacy.'"  "The material USMS withheld included 'names, telephone numbers, and other information that could identify the officers and investigators involved in the criminal investigation that culminated in Plaintiff's arrest and conviction.'"  "Similarly, ICE withheld the names of 'the Special Agents and other investigators who were involved in the investigation into Plaintiff's activities.'"  "Both agencies also withheld information relating to third parties, such as the names, birthdates, and contact information of Plaintiff's relatives, the names of his doctor and lawyer, names of children, and other identifying information that could risk embarrassment or harassment."  "The disclosure of this withheld information would risk invading personal privacy protected by the law of this Circuit, and that invasion is not outweighed by any public interest."  "There is little countervailing public interest in exposing the identities or contact information of law-enforcement officials."  "Here, there is no indication that disclosure of the officials' information would illuminate 'what [the] government is up to,' and Plaintiff does not assert any public interest in the information."  The court similarly finds that "Plaintiff has made no allegation here that the agencies engaged in illegal activity nor has he asserted a public interest in the information regarding private citizens."
   
• Exemption 7(E):  The court holds that "[t]he withholdings under Exemption 7(E) are . . . justified."  "Here, the exemption was applied by both USMS and ICE to internal codes and identification numbers and by ICE to information relating to its investigations."  "The internal codes and numbers that both agencies withheld include 'Plaintiff's FBI number and Federal Identification number and ICE's internal Case Number and Report of Investigation.'"  "According to the agencies, such information could be used to 'compromise the integrity of the data either by deleting or altering information' or by 'allow[ing] a person to breach sensitive legal/law enforcement sensitive systems.'"  "Such withholdings are appropriate under Exemption 7(E)."  Additionally, "[t]he fact that [plaintiff] received unredacted versions from the Pinellas County Sheriff's Office of some of the documents that USMS withheld under this exemption, . . . does not alter the Court's determination, as its review is limited to the agency's decision when it was made, and at this point 'it would be illogical and wasteful to require an agency to produce multiple copies of the exact same document.'"
  
  "ICE also withheld investigative information – namely, 'narrative portions of the Report of Investigation comprising techniques and/or procedures for law enforcement investigations or prosecutions that are not well known to the public,' including 'material that concerns details of how ICE conducts a criminal investigation involving an undercover agent.'"  "These redactions also contained detail on 'a forensic examination of a computer [and] cell phone.'"  "ICE compiled this information for purposes of its investigation into [plaintiff], and an undercover agent's operations and '[f]orensic examination procedures are undoubtedly "techniques" or "procedures" used for "law enforcement investigations."'"  "ICE has also 'demonstrate[d] logically how the release of the requested information might create a risk of circumvention of the law,' . . . by alerting criminals to forensic techniques currently in use such that they could, for example, erase their devices and evade investigations."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court relates that "[h]ere, both USMS and ICE attest that '[a] line-by-line review was conducted to identify information exempt from disclosure or for which a discretionary waiver of exemption could be applied.'"  "Each agency also submitted a detailed Vaughn Index explaining why the relevant portions of records were withheld."  "In so doing, the agencies have complied with their obligation to release all reasonably segregable information."
   
• Litigation Considerations, In Camera Inspection:  The court denies plaintiff's request for an in camera inspection of a certain document.  The court relates that "Plaintiff . . . asks the Court to review in camera ICE's Report of Investigation 14, an almost fully redacted 15-page document entitled 'Forensic Examination of Digital Media Devices.'"  The court finds that "ICE's affidavits and Vaughn Index explain with specificity the types of information that were withheld from [this document], which exemptions were applied to that information, and the rationale for those withholdings."  "Plaintiff makes no allegation that ICE either acted in bad faith or provided reasons inconsistent with the record to apply these redactions."  "The Court also will not grant [plaintiff's] alternate request to order ICE to amend its Vaughn Index with more detail on the contents of [the document at issue] given the specificity with which the withheld information is already described."
   
• Litigation Considerations, Foreseeable Harm Showing:  Regarding foreseeable harm, the court holds that "[t]he inquiry may vary with context as 'the agency's burden to demonstrate that harm would result from disclosure may shift depending on the nature of the interests protected by the specific exemption with respect to which a claim of foreseeable harm is made.'"  "In some cases, the requirement may be met if '"the very context and purpose of" the withheld material "make[s] the foreseeability of harm manifest."'"  "Here, the agencies' statements in their declarations and the Vaughn Indexes have established foreseeable harm by 'connect[ing] the harms in a meaningful way to the information withheld.'"  "The agencies explain that releasing the personal identifying information of Government employees might subject them to harassment or public hostility."  "Releasing 'Plaintiff's last known address and phone number' could also invade the privacy of the home's current occupants."  "Similarly, ICE described the potential harms from releasing information that could identify child victims, suggest third parties were involved in an investigation, and risk the breach of law-enforcement systems."  "This is enough to show foreseeable harm under Exemption 7(C)."  "Finally, Plaintiff cannot similarly challenge ICE's withholding under Exemption 3, as 'the foreseeable harm requirement . . . does not require "disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under subsection (b)(3)."'"