Perez v. ICE, No. 19-3154, 2020 WL 5362356 (S.D.N.Y. Sept. 8, 2020) (Gardephe, J.)
Perez v. ICE, No. 19-3154, 2020 WL 5362356 (S.D.N.Y. Sept. 8, 2020) (Gardephe, J.)
Re: Request for records concerning investigation of plaintiff's internal complaint against his direct supervisor
Disposition: Adopting magistrate judge's report and recommendation; granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment
- Litigation Considerations: The court holds that "the parties' agreement to narrow the scope of this litigation to the six responsive pages withheld in full and the 289 pages withheld as non-responsive will be enforced." The court relates that the magistrate judge previously found, in response to the parties' agreement to narrow the scope of the litigation, that "'[plaintiff] has failed to explain how his agreement to narrow the issues in this case was not knowing and voluntary.'" "'Nor has [plaintiff] shown how it would be "manifestly unjust" to enforce the parties' unequivocal agreement to narrow the scope of this litigation.'"
- Exemption 6: "[T]he Court finds no error – let alone clear error – in [the magistrate judge's] thorough and well-reasoned analysis" regarding six pages withheld in full. The court relates that "[the magistrate judge] found that ICE made a sufficient showing that 'the six pages constitute files similar to medical and personnel files.'" "As the R&R notes, it 'is well-established that "administrative investigatory files, which could contain personal information about the subject of the investigation and about third-party witnesses," like the records here, constitute "similar files" under Exemption 6.'" Additionally, the court relates that "[the magistrate judge] concluded that the privacy interests outweighed any public interest in disclosure of the information." "[The magistrate judge] found that '[r]evealing the identity of the witnesses involved in the investigation could subject them to "harassment, embarrassment, unnecessary questioning, possible interference with official duties, . . . reprisals . . . stigma and potential reputational harm"' because of '"their association with the agency's internal investigation."'" "In contrast to the strong privacy interests at stake here, [the magistrate judge] found 'at most a minimal public interest in disclosure.'" "'[T]he only remaining undisclosed information that likely could be gained from disclosing the witness statements is the identification of the witnesses,' but 'courts have consistently opined that there is no cognizable public interest in merely identifying witnesses.'" As to the public interest in information about the government employee, the court found that the Perlman factors weigh against disclosure: "(1) '[the subject] is a supervisory attorney with an "intermediate" rank'; (2) '[plaintiff's] charges were serious but unsubstantiated'; (3) 'although FOIA appears to be the only means by which to obtain information about [plaintiff's] complaints and the ensuing investigation, the documents already disclosed likely provide more information than the withheld records at issue'; (4) '[plaintiff] has failed to establish that this information would shed light on government misconduct or corruption'; and (5) 'the information is related to job function.'" The court finds that "[a]lthough the fifth factor favors disclosure, the other factors do not."
- Litigation Considerations, "Reasonably Segregable" Requirements: The court relates that "[the magistrate judge] found that ICE 'properly justified its segregability determinations and therefore the records at issue may be withheld in full under Exemption 6.'" The court finds that "'ICE "reviewed the two records withheld in full line-by-line" and found "it could not reasonably segregate any content from these two documents without revealing the identity of witnesses and/or third parties, or what witnesses said concerning Plaintiff's allegations of misconduct."'"
- Procedural Requirements, Searching for Responsive Records: The court relates that "[plaintiff] argues that this Court should not credit ICE's characterization of . . . documents [determined to be non-responsive] because the agency has acted in 'bad faith.'" "As discussed above, however, [the magistrate judge] determined that [plaintiff's] allegations of 'bad faith' are unsubstantiated." "[Plaintiff] also argues that the withheld documents were likely responsive, because they were collected as part of ICE's initial search." "[The magistrate judge] rejected this argument as 'conclusory and speculative,' noting that the identification of 'certain documents . . . in the initial searches does not establish their responsiveness.'"