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Rosenberg v. ICE, No. 12-452, 2013 WL 4046701 (D.D.C. August 11, 2013) (Kollar-Kotelly, J.)

Re: Request for records related to raid of Agriprocessors, Inc. meatpacking plant and subsequent prosecution of Sholom Rubashkin Disposition: Granting defendant's motion for summary judgment in part and holding remainder in abeyance; denying plaintiff's cross-motion for summary judgment in part and holding remainder in abeyance
  • Time Limits:  The court finds that, "Plaintiff is not entitled to summary judgment on its claim that [defendant] failed to make the responsive records 'promptly available.'"  The court relates that, "[defendant] indicated that if the agency did not receive the Plaintiff's commitment to pay any duplication fees within thirty days . . . the Plaintiff's request would be closed."  Plaintiff, "never responded to [defendant's] letter" and therefore, "[c]onsistent with the Department of Justice's FOIA regulations, [defendant] discontinued processing the Plaintiff's request."  The court rejects plaintiffs argument that, "he was not required to respond to [defendant's] letter because regulations 'deemed Plaintiff to have agreed to pay that fee, remov[ing] any requirement that Plaintiff confirm' his agreement to pay any duplication fees."  The court explains that, "Plaintiff is correct that if he elected to receive documents on a CD, the estimated cost was only $25."  "However, because the Plaintiff failed to respond to [defendant's] letter, [defendant] had no way of knowing whether the Plaintiff would elect to receive responsive documents on a disk, thus incurring no more than $25 in duplication fees, or whether the Plaintiff would elect to receive the documents hard copy, thus incurring up to $112.30 in duplication fees."
  • Searching for Responsive Records:  The court finds that defendant, "has failed to satisfy its burden to show that its search was reasonably calculated to uncover all relevant documents."  First, the court rejects plaintiff's argument that, "[defendant's] search was inadequate because ultimately [defendant] only produced four pages of emails and failed to produce any communications 'planning, scheduling, or referring' to various interagency meetings."  The court finds that the fact, "'[t]hat [defendant's] search turned up only a few emails ... is not enough to render its search inadequate, even supposing that any reasonable observer would find this result unexpected.'"  Second, the court also rejects Plaintiff's "issue with [defendant's] decision to limit its search terms to the 'phonetic sounds of the last, middle, and first names.'"  The court finds that plaintiff, "does not identify any additional search terms [defendant] should have utilized, therefore this issue is moot."  However, in response to plaintiff's argument that, "the declaration provided by [defendant] to establish the adequacy of its search does not state that 'that searches of other record systems were not 'likely to turn up the information requested,' and does not aver that 'all files likely to contain responsive materials ... were searched,'" the court finds that, "neither declaration submitted by [defendant] avers or demonstrates that [defendant's] search in this case was 'tailored to the nature' of the Plaintiff's request," and "even when challenged by the Plaintiff as to the adequacy of its search for emails, [defendant] did not assert . . . that [defendant] searched all systems of records 'likely to possess the requested information.'"
  • Vaughn Index:  The court rejects plaintiff's arguments concerning the adequacy of defendant's declarations because defendant, "explaine[s] that [certain] pages were found to be duplicates," "identifie[s] by bates-number every page, including withheld pages, on which a particular exemption was invoked to justify withholding information," and "then explains in detail the basis for invoking each exemption, and in many cases it is unclear how [defendant] could have provided any additional detail as to the basis for the exemption without revealing the very information [defendant] withheld."
  • Segregability:  The court finds that, "upon its own review of unredacted versions of the documents at issue in this case, . . . [defendant] has produced to the Plaintiff all reasonably segregable, non-exempt information."  However, the court notes that defendant's "single statement, without any elaboration" that it has, "'processed and released all reasonably segregable information from the records responsive to plaintiff's request,'" "is plainly inadequate."  The court holds that, "'[defendant's] conclusion on a matter of law is not sufficient support for a court to conclude that the self-serving conclusion is the correct one.'"
  • Exemption 3:  The court "agrees that [defendant] properly invoked Exemption 3" "in conjunction with Federal Rule of Criminal Procedure to withhold 'Federal Grand Jury' information."
  • Exemptions 6 and 7(C):  First, the court holds that, "[defendant] must either revise its redactions or provide a supplemental explanation of the use of Exemptions 6 and 7(C) with respect to [certain] pages," on which defendant, "redacted information describing actions taken (or not taken) by third parties that does not appear to identify any third party whose identity might be protected by Exemption 6 or Exemption 7(C)."  Second, the court finds that, "[w]ith the exception of any redactions relating to Chief Judge Linda Reade, the Plaintiff does not dispute that the privacy interests of the third parties mentioned in the documents at issue in this case would be compromised by disclosure of the withheld information, and does not suggest that release of the information would advance any significant public interest."  Therefore, the court finds that, "except as set forth above, [defendant] is entitled to summary judgment with respect to its use of Exemptions 6 and 7(C)."  Third, the court holds that, "[b]ased on the court's in camera review of the redacted and withheld documents, including the documents regarding 'pre-trial meetings' mentioned in the Plaintiff's Cross–Motion, the court finds none of the information withheld pursuant to Exemptions 6 and 7(C) corroborate the Plaintiff's allegations of misconduct, thus [defendant] acted appropriately to the extent it redacted any information regarding Chief Judge Reade pursuant to Exemptions 6 and 7(C)."
  • Exemption 7(E):  Concerning Exemption 7(E), The court notes that certain withheld documents, "clearly indicates the agency was investigating potential obstruction of justice charges against whomever was believed to be responsible for placing the newspaper advertisement" and "[m]oreover, [defendant] offers no explanation as to how revealing the specific questions the agency suggested be asked as part of an investigation of possible obstruction of justice through the placement of a newspaper ad concerning an upcoming trial 'could reasonably be expected to risk circumvention of the law.'"  Therefore, defendant, "shall be required to supplement its motion" as to these pages.  However, as to the remainder of thid set of Exemption 7(E) withholdings, the court "agrees that [defendant] has met its burden" to '"demonstrate logically how the release of the requested information might create a risk of circumvention of the law,'" through defendant's "somewhat conclusory" statement that, "'disclosure would provide perpetrators with a tangible reference that could be used to alter behavior and thwart detection.'"  The court affirms defendant's other Exemption 7(E) withholdings based on defendant's claims that it, "will use the same or similar techniques and/or assistance as part of similar investigations in the future, [and] '[i]f the ratings columns were released,' individuals involved in criminal activity 'could change their activities and modus operandi in order to avoid detection and/or surveillance in the future.'"
Court Decision Topic(s)
District Court opinions
Exemption 3
Exemption 6
Exemption 7(C)
Exemption 7(E)
Procedural Requirements, Time Limits
Litigation Considerations, Vaughn Index/Declarations
Updated August 6, 2014