Garcia v. EOUSA, No. 16-94, 2018 WL 1320669 (D.D.C. Mar. 14, 2018) (Bates, J.)

Garcia v. EOUSA, No. 16-94, 2018 WL 1320669 (D.D.C. Mar. 14, 2018) (Bates, J.)

Re: Request for records concerning cooperating witness 

Disposition: Granting defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "[EOUSA's] affidavit provides sufficient information for EOUSA's search process to be challenged: it indicates who conducted the search, specifies the search terms used, and describes the type of search conducted."  "The information in the affidavit indicates that EOUSA took a sensible and systematic approach to plaintiff's FOIA request."  "Plaintiff has not alleged that any of the information EOUSA provided was inaccurate, or that its process was inadequate."  "Accordingly, [the court holds that,] because EOUSA ensured that all systems 'likely to contain records responsive to plaintiff's request were searched,' . . . and submitted a reasonably detailed declaration describing the search, the search was adequate."
   
• Exemption 6:  The court holds that, "because the disclosure of the third-party identifying information would 'constitute a clearly unwarranted invasion of personal privacy,' . . . and disclosure of the information would serve little public benefit, the agencies' reliance on Exemption 6 in withholding responsive documents was appropriate."  The court relates that "[t]he agencies noted that the documents withheld included a wide range of identifying personal information, and they raised legitimate concerns about retaliatory actions that could be taken against the law enforcement agents and cooperating witnesses whose information the agencies wish to shield under Exemption 6 – particularly given the violent tendencies of the MS–13 gang – and about maintaining the confidentiality of witnesses who cooperated with the promise that their identities would remain private."  The court finds that, "[w]hile information regarding the RAGE Unit Task Force might shed light on ATF's operations against a prominent gang, the documents withheld under Exemption 6 contain a wide range of confidential information about individuals involved with the Task Force's investigations."  "'[R]arely does a public interest outweigh an individual's privacy interest when law enforcement information pertaining to an individual is sought,' . . . and this is not one of those rare instances."
   
• Exemption 7(C):  The court holds that, "[a]s described above in connection with Exemption 6, the agencies each assert a strong privacy interest against disclosure: the release of documents compiled for law enforcement purposes could subject individuals to 'harassment, harm, or exposure to unwanted and/or derogatory publicity and interferences.'"  Against that, the court finds that "[t]he public interest in favor of disclosure, meanwhile, is slight."  "Plaintiff has not satisfied his burden of demonstrating that the public interest in disclosure outweighs the privacy interests at stake because 'there is no such evidence of agency misconduct.'"  Therefore, the court finds that defendants properly used Exemption 7(C).
   
• Exemption 7(D):  The court holds that "[t]he agencies . . . properly invoked Exemption 7(D)."  The court finds that "[t]he confidential information was provided 'during the course of a legitimate law enforcement investigation' into the activities of MS–13."
   
• Exemption 7(E):  The court relates that "ATF[] explained that '[a]lthough the use of recording devices and the use of [Confidential Informants/Confidential Sources] are known law enforcement techniques, specific information relating to the types of recording devices used, the parameters used to determine whether a device or [Confidential Informants/Confidential Sources] will be used, and how law enforcement employs those techniques could reveal information that would result in circumvention of the law.'"  Additionally, "ICE[] explained that 'the law enforcement techniques redacted involve cooperative arrangements between ICE and other agencies,' the disclosure of which 'could adversely affect future investigations by giving potential subjects of investigations the ability to anticipate the circumstances under which such techniques could be employed . . . and identify such techniques as they are being employed in order to either obstruct the investigation or evade detection from law enforcement officials.'"  The court holds that "[t]hese statements logically explain how releasing the content of these documents could help criminals circumvent the law, and that 'suffices here to justify invocation of Exemption 7(E).'"
   
• Exemption 7(F):  "[T]he Court concludes that EOUSA, DOJ, and ATF have sufficiently justified their invocations of Exemption 7(F)."  The court relates "that Exemption 7(F) was asserted 'to protect the identities (including identifying information) of confidential informants providing information to law enforcement officers with an express promise of confidentiality.'"  "If these identities were released, the individuals would be subject to 'retaliation, including murder, by [a] violent criminal organization guilty of murder, attempted murder, arson, and assault.'"  Additionally, the court relates that "'Plaintiff served as a fairly high level MS–13 gang member' and '[m]embers of MS–13 frequently engage in criminal activity, including, but not limited to, murders, assault, robberies, kidnappings, and witness intimidation.'"
   
• Exemption 5:  The court holds that "[t]he documents withheld are attorney work product of the sort 'routinely protected in discovery,' and therefore 'fall[ ] within the reach of Exemption 5.'"  The court relates that "EOUSA explained that the records withheld pursuant to Exemption 5 included, among other things, email communications of attorneys involved in plaintiff's criminal case and draft letters and memoranda."  Also withheld were "certain documents that were 'in the form of applications and worksheets which pertain to a third-party confidential source[]'" "'[b]ecause these applications and worksheets involve and contain the thought processes, personal evaluations, litigation strategies and positions of government attorneys and their agents[.]'"
   
• Exemption 3:  The court relates that "EOUSA invoked Exemption 3 in connection with a transcript of a conversation between third-party individuals, which described detailed criminal activity, including names of individuals, because 'the release of the name of the witness or other contextual information that could lead to the derivation of the name would compromise the integrity of the grand jury system.'"  "As disclosure of the document in question 'would tend to reveal . . . the identities of [grand jury] witnesses,' . . . [the court holds that] this document was properly withheld under Exemption 3."
   
• Litigation Considerations, "Reasonably Segrgeable" Requirements:  The court relates that "EOUSA, DOJ, ICE, and ATF each examined all responsive documents 'page-by-page' and determined that 'no reasonably segregable non-exempt information was withheld from plaintiff.'"  "Hence, [the court finds that] the agencies . . . appropriately concluded that no non-exempt material was reasonably segregable."