Cullen v. DHS, No. 20-113, 2023 WL 5607425 (D.D.C. Aug. 30, 2023) (Kelly, J.)

Cullen v. DHS, No. 20-113, 2023 WL 5607425 (D.D.C. Aug. 30, 2023) (Kelly, 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

• Exemption 6; Exemption 7(C); Litigation Considerations, “Reasonably Segregable” Requirements:  “To justify withholding the adult pornography, Defendants assert two related exemptions: Exemptions 6 and 7(C).”  “The Court has no trouble concluding that Exemption 7(C) applies here.”  “[T]he [withheld] forensic report, the source of the withheld pornography, was compiled for law-enforcement purposes because [defendant] created it as part of its investigation and DOJ’s prosecution of Plaintiff for possessing and distributing child pornography.”  Regarding “the privacy interests implicated[,] [n]o doubt, sexually explicit images implicate privacy interests.”  “[F]or those depicted in sexually explicit material found on Plaintiff’s computer – a state over which they had imperfect (or likely no) control – there is an obvious potential unwarranted association with criminal activity:  Their images were found in a collection that contained child pornography too.”  “For these reasons, the Court agrees with Defendants that disclosure could create a ‘stigmatizing connotation’ for affected individuals.”  “Plaintiff attempts to defeat that inference with the public-domain doctrine.”  “Plaintiff has not come close to proving that.”  “His argument rests [on] an unsupported assumption:  ‘the high likelihood that all of this material was commercially produced.’”  “But his supposition just doesn’t cut it.”  “Plaintiff does not even assert, much less meet his burden to prove, that the material existed anywhere other than his own computer, let alone that there is a permanent record of it in the public domain.”  Regarding public interest, “[t]he Court cannot conceive of any . . . public interest.”  “The Court is at a loss to explain how disclosing sexually explicit images found on Plaintiff’s computer would advance a public interest.”  “Without any public interest in disclosure, the balancing test is easy to apply.”  “‘Any amount of privacy expectation outweighs [a] . . . nonexistent public interest.’”  “Thus, Defendants properly invoked Exemption 7(C) to withhold the images, and they are entitled to summary judgment in that respect.”
  
  Regarding segregability, the court finds that “Defendants have shown that this report contained exempt material, which it may withhold.”  “Under those circumstances, the Court must presume they ‘complied with the obligation to disclose reasonably segregable material.’”  “To overcome that presumption, the requester must produce at least some evidence ‘that would warrant a belief by a reasonable person’ that the agencies failed to segregate.”  “Plaintiff offers only unsubstantiated – and vague – assertions.”  “Defendants’ witness swears that the processed version of the report was separated from the version containing exempt material by ‘line by line review.’”  “That declaration suffices for the Court to find that the agency reasonably segregated nonexempt material.”
  
  “What remains of the second category of contested material is a ‘list of file names of child pornography links and images,’ which have been redacted from material produced to Plaintiff.”  “The redactions do not contain the images themselves – just the text of links to files stored elsewhere.”  “But a FOIA officer has sworn that ‘the links could be used to readily access such images from the internet by the simple act of typing these file names into a computer.’”  “Thus, Defendants have again asserted that Exemptions 6 and 7(C) apply to protect the privacy interests of the subjects depicted in the images.”  “Plaintiff contests those redactions on factual grounds.”  “He thinks the declarant is mistaken that the links could be used to access child-sex-abuse material and ‘is willing to wager’ the declarant has not verified this claim.”  “The problem for Plaintiff is that the affidavit on which Defendants rely is detailed and nonconclusory on these points.”  “And because of those qualities, it is ‘afforded a presumption of good faith, which the requester cannot rebut with purely speculative claims.’”  “Given the risks of publicizing these links, the applicability of Exemption 7(C) is obvious.”  “As explained above, information in law-enforcement records that identifies third parties is ‘categorically exempt from disclosure.’”  “Here, that rationale is especially strong because the subjects depicted are underage crime victims with a ‘cognizable privacy interest’ in avoiding further distribution of the images and association with this case.”  “There is also no public interest in further disseminating such material.” 
   
• Litigation Considerations, In Camera Inspection:  “Plaintiff asks the Court to review in camera the records for which he challenges Defendants’ withholdings.”  “As the Court explained above, Defendants met their summary-judgment burden through detailed, specific affidavits that demonstrate (1) the applicability of Exemption 7(C) and (2) their reasonable segregation of non-exempt material.”  “So the Court will not conduct in camera review.”