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Day, Jr. v. U.S. Dep’t of State, No. 20-2004, 2022 WL 3700904 (D.D.C. Aug. 26, 2022) (Sullivan, J.)


Day, Jr. v. U.S. Dep’t of State, No. 20-2004, 2022 WL 3700904 (D.D.C. Aug. 26, 2022) (Sullivan, J.)

Re:  Request for records concerning plaintiff

Disposition:  Granting defendant’s motion for leave to file amended declaration; granting defendant’s motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

  • Litigation Considerations, Adequacy of Search:  The court holds that “defendant demonstrates that its searches were reasonably calculated to locate records responsive to plaintiff’s FOIA request.”  The court relates that “Plaintiff challenges both the method and the results of the State Department’s searches.”  “Regarding the method of search, plaintiff objects to the use of different terms to search the State Department’s databases.”  “He fails to demonstrate, however, that using variations of his name, or using other search terms such as his date of birth, or the imposition of a date range, was unreasonable.”  “Here, the variations were minimal, and the Court is satisfied that the State Department’s searches were reasonably calculated to locate information responsive to plaintiff’s FOIA request.”  “Also, plaintiff deems the results of the searches unacceptable.”  The court finds that “Plaintiff wants a perfect search yielding every conceivable bit of information about him, but the agency need only conduct a reasonable search.”  “‘The fact that some disclosed documents may reference other documents that were not produced, standing alone, does not foreclose a grant of summary judgment to the government.’”
  • Exemption 5, Deliberative Process Privilege:  The court relates that defendant withheld in part “an email from the Regional Security Officer in Belize to an investigator at the U.S. Department of Defense reflecting the Regional Security Officer’s ‘views about one method of apprehending Plaintiff might be preferable to another.’”  “Defendant deems the document predecisional because, at that time, the authorities had not yet chosen a method for apprehending plaintiff, and deliberative because the Regional Security Officer was offering his opinion to the Department of Defense, which would have final decisionmaking authority with respect to plaintiff’s apprehension.”  “The second document[, that defendant withheld in full,] is ‘a non-final segment’ of a redlined Word document.”  “Defendant considers the document predecisional and deliberative given ‘it is a non-final segment of a draft document.’”  The court relates that “[defendant’s] declarant asserts that release of this information poses two potential harms:  ‘inhibit[ed] communication and cooperation among agency law enforcement components,’ . . . and chilling effects on ‘the free flow [and] exchange of ideas’ among federal law enforcement agencies . . . and ‘employees’ internal drafting processes,’ . . . .”  “Plaintiff does not object to these withholdings, and the Court concludes that the State Department justifies its reliance on Exemption 5.”
  • Exemption 7, Threshold:  The court notes that “[a]ll of the ‘documents at issue in this case were collected as part of the U.S. Government’s law enforcement efforts to locate . . . [p]laintiff,’ . . . ‘who was a fugitive in Belize and Mexico, from which he was extradited in 2010’ . . . .”  “Defendant’s supporting declarations, as well as the descriptions of the responsive records in the Vaughn Index, support the conclusion that the responsive records fall within the scope of Exemption 7.”
  • Exemption 7(C) & Waiver and Discretionary Disclosure, Waiver:  The court relates that “Defendant withholds ‘identifying information of law enforcement officers and individuals named in the [responsive] records’ under Exemption 7(C).”  “The declarant explains that the records ‘were collected as part of the U.S. Government’s efforts to locate and extradite [p]laintiff,’ . . . and identifies no public interest to outweigh the third parties’ privacy interests.”  “Plaintiff raises two objections to the State Department’s reliance on Exemption 7(C).”  “First, he points to the disclosure of the name of an agent with the Defense Department’s Office of Inspector General . . . and leaps to the conclusion that the State Department thus has waived its right to invoke Exemption 7(C) at all . . . .”  The court finds that “[h]e is mistaken.”  “A single inadvertent disclosure of a third party’s name does not call for the disclosure of all third party information.”  “Furthermore, the right to privacy belongs to the third party mentioned in law enforcement records, not the agency maintaining those records, and the State Department may not waive protection on any third party’s behalf.”  “Second, plaintiff argues that ‘[t]he names and addresses (email and physical)’ withheld by the State Department ‘have been in the public domain,’ such that protection under Exemption 7(C) is not warranted.”  The court finds that “Plaintiff fails to identify any information withheld under a FOIA exemption which duplicates information the government has made public previously.”  “It is not enough to assert that a . . . Special Agent spoke publicly without showing that his statements to the press include the same information at issue in this case.”  “Similarly, it is not enough to point to the public docket of a criminal case generally without identifying a particular document substantially similar to a document or portion of a document withheld by the State Department.”  “Plaintiff is no more successful arguing that disclosure of information in the context of a criminal prosecution puts the information in the public domain.”
  • Exemption 7(D):  The court relates that “[t]he State Department withholds the names of and information provided by confidential sources who cooperated with law enforcement in an investigation to locate, apprehend and extradite plaintiff, who ultimately was ‘convicted of wire fraud, conspiracy to commit wire fraud, conspiracy to commit money laundering, and conspiracy to commit smuggling.’”  “The declarant states that these confidential sources provided information under ‘implicit assurances of confidentiality.’”  “He explains that the sources ‘were connected to [p]laintiff in a variety of . . . ways,’ and that they provided ‘[c]ertain information’ that was ‘singular in nature and, if released, could reveal their identities.’”  “Further, the declarant states, disclosure of the sources’ identities and information they provided ‘could have subjected them to reprisal as law enforcement authorities attempted to locate [p]laintiff.’”  “In addition, the declarant explains that the government relies on confidential sources to further its law enforcement efforts, and disclosure of sources’ identities not only could endanger the sources’ lives but also could discourage cooperation of other sources in future investigations.”  “Plaintiff does not challenge the State Department’s reliance on Exemption 7(D), and the Court concludes that defendant properly withheld the names of and information provided by confidential sources.”
  • Exemption 7(E):  The court relates that “the State Department withholds ‘information related to certain techniques used to track [p]laintiff, details regarding the use of certain tools to assist investigators in gathering information and evidence, and the assignment of law enforcement personnel to specific activities, the details of which are not well-known to the public.’”  “According to the declarant, if this information were released, it ‘could provide insight into the methods used to apprehend and extradit[e] [p]laintiff’ and ‘show[] the kinds of access law enforcement agencies had to [p]laintiff before his ultimate arrest.’”  “And if information about the techniques and procedures employed to effect plaintiff's arrest were released, it ‘could . . . provide those seeking to circumvent law enforcement efforts in the future with a roadmap’ to evade detection.”  “Thus, absent any challenge by plaintiff, the Court concludes that the State Department adequately justifies its reliance on Exemption 7(E).”
  • Litigation Considerations, “Reasonably Segregable” Requirements:  “The Court accepts the declarant’s representation that IPS staff reviewed the responsive records, line-by-line, . . . ‘to ensure that all non-exempt, segregable information was released to’ plaintiff . . . .”
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Exemption 7(C)
Exemption 7(D)
Exemption 7(E)
Exemption 7, Threshold
Litigation Considerations, Adequacy of Search
Litigation Considerations, “Reasonably Segregable” Requirements
Waiver and Discretionary Disclosure
Updated September 21, 2022