Conti v. DHS, No. 12-5827, 2014 WL 1274517 (S.D.N.Y. Mar. 24, 2014) (Torres, J.)

Conti v. DHS, No. 12-5827, 2014 WL 1274517 (S.D.N.Y. Mar. 24, 2014) (Torres, J.)

Re: Request for records concerning several ICE agents, as well as for records concerning plaintiff

Disposition: Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment without prejudice to renewal

• Litigation Considerations, Adequacy of Search:  The court grants defendant's motion for summary judgment concerning the reasonableness of defendant's search.  The court holds that "DHS has demonstrated that it conducted an adequate search for the documents requested by Plaintiff."  The court explains that defendant's "declaration indicates that ICE FOIA searched the record systems, or caused the record systems to be searched, where it believed responsive records were likely to be located."  The court also finds that defendant's "declaration shows that each of these searches was conducted reasonably and in good faith."  Additionally, the court finds that "[p]laintiff's proof of missing documents fails to render DHS' search unreasonable."  Moreover, the court "declines to find DHS' search inadequate simply because DHS conducted supplemental searches which resulted in the release of previously unreleased documents."  The court notes that "[i]ndeed, these supplemental searches further demonstrate ICE FOIA's good faith in responding to Plaintiff's FOIA requests."

• Exemption 5, Attorney-Client Privilege:  The court finds that "[t]he attorney-client privilege [] protects all of these communications from release, and ICE FOIA's assertion of Exemption 5 over the communications was proper."  The court explains that "[e]ach withheld e-mail communication is between agency employees, on one hand, and an agency attorney from DHS Office of the Principal Legal Advisor . . . , on the other."  Additionally, the court notes that "[t]he subject of all of the withheld e-mails was [certain] litigation; all of the communications were made for the purpose of securing or providing legal advice or services; and all of the communications were intended to be, and were kept, confidential."

• Exemption 6 and 7(C):  The court holds that "[p]laintiff has met his burden of production with respect to [certain documents] as they all match information previously disclosed."  However, regarding certain information concerning third parties which was not publically disclosed, the court finds that it was properly withheld and "[p]laintiff has failed to provide a meaningful evidentiary showing of his other vague allegations of government misconduct."  Specifically, the court finds that "[r]egarding [an individual's] theft of government property, the public interest is insubstantial because the information sought regarding [this individual] is not ' 'necessary in order to confirm or refute' ' the theft" because "[this individual] has pleaded guilty and been sentenced in federal court; thus, the public interest in confirming or denying [his] misconduct is negligible."  Additionally, the court finds that "[p]laintiff's private interest—the use of documents in the MSPB litigation—is immaterial."  The court also finds that defendant's Glomar response made in response to plaintiff's request for "investigative files and records relating to third parties" was appropriate.  The court holds that "[b]ecause Exemptions 6 and 7(C) protect from disclosure the existence or non-existence of the requested investigative files, DHS' Glomar responses were appropriate."

• Exemption 7(E):  The court holds that "[s]ummary judgment is denied as to DHS' Exemption 7(E) redactions, as some of the Exemption 7(E) redactions withhold information already in the public domain."  The court notes that "ICE FOIA has asserted Exemption 7(E) to protect certain confidential ICE investigative techniques and procedures for law enforcement investigations or prosecutions."

• Exemption 7(A):  The court holds that "summary judgment is denied on the Exemption 7(A) redactions."  The court finds that law enforcement proceedings have concluded and notes that "Judge Esther Salas sentenced [plaintiff's supervisor], making his conviction final."

• Litigation Considerations, Vaughn Index / Declaration:  The court "finds that the Vaughn indices adequately catalogue each redaction of a witness statement, indicate every application of an exemption, and indicate the exemption's relevance."  Specifically, the court "finds that the Vaughn indices here sufficiently describe the redacted documents and correlate the redactions with each particular exemption."

• Litigation Considerations, "Reasonably Segregable" Requirements:  The court's "[e]xamination of the redacted and un-redacted versions side by side reveals that the redacted portions were covered by the exemptions (until they were publicly disclosed) or at the very least, non-exempt portions of the paragraphs are inextricably intertwined with exempt portions."

• Procedural Requirements, Searching for Responsive Records:  The court holds that "[p]laintiff is not entitled to documents outside the scope of his request."  Additionally, the court finds that "[s]imilarly, it appears that Plaintiff is not entitled to duplicative documents either."