Wednesday, March 27, 2013
Re: Request for records concerning plaintiff and his minor child Disposition: Granting State's motion for summary judgment in part and denying plaintiff's cross-motion for summary judgment
- Adequacy of Search: The court concludes that State is entitled to summary judgment with regard to the adequacy of its search for responsive records. The court finds that plaintiff's "speculative argument about missing documents does not suffice to raise a material factual dispute about the search." Plaintiff argued that State's failure to release responsive records from its Office of Overseas Citizens Services (OCS) from a specified time period rendered its search unreasonable. The court rejects this argument, noting that State's declaration "describes searches that were conducted of OCS' electronic and paper files, utilizing [plaintiff's and his child's] names and relevant terms." In addition, the court notes that it previously found that "the National Center for Missing and Exploited Children (NCMEC) is a private entity that is not subject to the FOIA's disclosure requirements" contrary to plaintiff's arguments that NCMEC records were unreasonably excluded from State's search.
- Vaughn & Segregability: The court rejects plaintiff's argument that defendant's Vaughn Index is not sufficiently detailed. The court finds that the "index is more than adequate inasmuch as it correlates the particular exemptions relied upon with the withheld information and, thus, 'convey[s] enough information for [plaintiff] and the court to identify the records referenced and understand the basic reasoning behind the claimed exemptions.'" However, the Vaughn is not detailed enough for the court to make a segregability determination because the court cannot tell "which exemption applies to which portion of the document." Accordingly, the court directs State to "submit a more detailed Vaughn index with regard to documents withheld in their entirety."
- Exemption 5: The court finds that State properly applied Exemption 5 to documents containing deliberative process material with the exception of "a memorandum of 'a [telephone] conversation [between defendant and a Michigan Detective] discussing the prospects of action by Michigan law enforcement authorities against [plaintiff].'" The court finds that that memorandum does not qualify for protection under Exemption 5 because it "reflects neither inter-agency nor intra-agency discussions." With respect to the remainder of the documents withheld pursuant to Exemption 5, the court determines that the defendant properly withheld in full "seven inter-agency e-mails containing 'candid exchanges between Department officials and Embassy personnel about the enforcement of passport rules and regulations" and "information reflecting 'internal deliberations' concerning both [plaintiff and his child's] mother relating to the overarching issues surrounding their [child's] custody."
- Exemption 6 &Waiver: The court upholds State's invocation of Exemption 6 to protect "information pertaining to health and private contact information of the child's mother, her attorney's private contact information, and information about other third-party individuals" as well as to "information of broader categories of third-party individuals, including law enforcement personnel and embassy personnel." Plaintiff argues that much of the information has been publicly disseminated, but the court finds that his "public domain argument fails because it is not predicated on an 'official and documented disclosure. '" State may still invoke FOIA exemptions even though plaintiff "may have obtained withheld information from an unofficial source or by some other means." The court notes that "[t]o the extent that [plaintiff] is seeking release of exempt material on a waiver theory, the publicity surrounding the child's mother, even if she approved it, cannot be said to constitute waiver by the agency of its right to invoke FOIA exemptions." The court also rejects plaintiff's argument that release of third-party information redacted from the mother's Authorization for Release of Information to Certain Parties "would shed light on how the government works by 'ascertain[ing] the degree to which [defendant] has improperly invoked Exemption (b)(6) in the present FOIA case" as well as "clarify the relationship between [the defendant] and the NCMEC." Weighing the privacy interest of the third parties against the public interest, the court determines that plaintiff has not "identified 'government misconduct' that would be revealed from the release of the third-party information," and thus defendant is entitled to summary judgment with respect to Exemption 6.
- Exemption 7 Threshold: The court acknowledges that "[s]ince DOS is not a law enforcement agency, its claim that records were compiled for law enforcement purposes is entitled to less deference than that of a law enforcement agency." However, the court notes that "it cannot be seriously disputed that at least some of the requested records pertain to alleged international kidnapping charges against [plaintiff]."
- Exemption 7(A): The court finds that Exemption 7(A) was properly applied to "'requests for INTERPOL action' relative to 'an ongoing enforcement action.'" Plaintiff challenges "the existence of a law enforcement proceeding," based in part on documents that were not part of the records and his rejection of the jurisdiction of the French courts and acceptance of the Greek court's decision. However, the court finds that "[n]either [plaintiff's] unsubstantiated claims nor his subjective views about the courts' decisions present a materially factual dispute with regard to DOS's evidence of ongoing enforcement actions."
- Exemption 7(C): The court holds that State properly used Exemption 7(C) to withhold names and identifying data of law enforcement officers. It finds that the public interest asserted by plaintiff, namely, that these officers are aware that there was no probable cause for his arrest, is deficient. The court finds that plaintiff's "subjective assertions fail to trigger the balancing requirement not only because they are unsubstantiated but also because they present interests that are clearly personal to [plaintiff]." With respect to telephone and fax numbers of law enforcement officers, the court notes that "possible harassment[ ] does not and cannot turn on whether they are work numbers or private numbers, both categories of which can lead to identifying the respective officer." The court further notes that plaintiff has not articulated a public interest in disclosure of the numbers.
- Exemption 7(E): The court denies State's motion for summary judgment with regard to Exemption 7(E) because it "cannot discern what disclosure could risk circumvention of the law" based upon State's declaration. Although State has asserted that it "redacted information 'that would reveal details of the procedures used to coordinate actions among U.S. and foreign law enforcement agencies,' and information 'that relates to [DOS's] techniques and procedures to record and communicate information used to protect the integrity of the passport process," it has not shown how there is a risk of circumvention. The declaration only states that "[r]elease of [the withheld] information could hamper the use of these procedures in the future" and the court finds that this is too vague a conclusion, and summary judgment is denied without prejudice as to these withholdings.
Adequacy of Search
Updated August 6, 2014