Shem-Tov v. DOJ, No. 17-2452, 2020 WL 2735613 (D.D.C. May 25, 2020) (Moss, J.)

Shem-Tov v. DOJ, No. 17-2452, 2020 WL 2735613 (D.D.C. May 25, 2020) (Moss, J.)

Re:  Request for defendants' communications with Israeli government concerning requests of Israeli law enforcement for assistance from the United States under the Treaty on Mutual Legal Assistance in Criminal Matters ("MLAT") between the United States and Israel

Disposition:  Granting in part and denying in part defendants' motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  Regarding USNCB, "[t]he Court will . . . grant Interpol Washington's motion for summary judgment with respect to the adequacy of its search."  The court finds that "[t]he Dembkowski declaration, which Plaintiff has not challenged with respect to the adequacy of the searches it describes, offers a detailed explanation of which 'files [and databases] [were] likely to contain responsive materials,' and 'set[s] forth the search terms and the type[s] of search[es] performed.'"  "The Court concludes that it establishes 'beyond material doubt that [Interpol Washington's] search was reasonably calculated to uncover all relevant documents.'"
  
  "The Court concludes that DHS has also carried its summary judgment burden of establishing that it conducted an adequate search in response to Plaintiff's request."  Specifically, the court finds that "[defendant's] declaration, which provides a reasonably detailed account of the DHS search, including the specific DHS subdivision searched, the file locations searched, and the search terms used, establishes that DHS conducted a search reasonably calculated to discover all records responsive to Plaintiff's FOIA request."
   
• Exemption 7, Threshold:  "The Court agrees that Interpol Washington has satisfied its burden to demonstrate that the records in question were compiled by USNCB for law enforcement purposes, namely to aid Israeli law enforcement authorities with their criminal investigation and prosecution of Plaintiff."  The court also holds that "Plaintiff's argument confuses the threshold requirement for application of Exemption 7 with the further requirement of Exemption 7(A)."  "The records compiled need not be associated with an 'ongoing law enforcement investigation' for the FOIA law enforcement exemptions invoked here, which do not include Exemption 7(A), to apply."  The court finds similarly regarding DHS because "[its] declaration explains that the 'records at issue pertain to the investigations conducted pursuant to DHS'[s] law enforcement authorit[y].'"
   
• Exemption 7(C):  Regarding USNCB, "[t]he Court concludes that the privacy interests asserted outweigh any unasserted public interest in the withheld information."  The court relates that "Interpol Washington asserts that it withheld the names of Federal law enforcement employees, non-law enforcement third parties, and USNCB support employees, as well as information by which the individuals in those three groups could be identified . . . ."  "First, the personal information withheld implicates legitimate privacy interests."  The court relates that the D.C. Circuit has "'held that not only the targets of law-enforcement investigations, but also "witnesses, informants, and . . . investigating agents" have a "substantial interest" in ensuring that their relationship to the investigations "remains secret."'"  "Second, Plaintiff has not asserted a countervailing public interest in the names and other personal identifying information that Defendant has withheld, and none is otherwise evident."  "The Court's balancing leads it to conclude that the recognized interests in government employees' and third parties' privacy outweighs any unasserted public interest in this information."  Responding to plaintiff's argument, the court finds that "Plaintiff's vague and conclusory statement about the names of some 'officials' already being public does not come close to passing [the waiver] test."
  
  Regarding DHS, "[t]he Court . . . concludes that the government employees' and third parties' privacy interest trumps the unasserted public interest in their disclosure, and therefore that DHS's withholding of the information was appropriate under Exemption 7(C)."  The court finds that "government employees and third parties have valid privacy interests in their names, addresses, and other personal information."  "Disclosure of this information 'could reasonably be expected to constitute an unwarranted invasion of personal privacy.'"  "Plaintiff has not asserted a 'public interest in disclosure' of the names, addresses, and contact information at issue."
   
• Exemption 7(D):  "The Court concludes that Interpol Washington has not carried its burden of establishing that Exemption 7(D) applies to the withheld documents."  The court finds that "Defendants' factual and legal submission is too sparse to permit the Court to engage in any meaningful review of the decision to withhold the records."  "The Court cannot discern, for example, whether Defendants contend that any record that relates in any way to a request for information or assistance from a foreign NCB is exempt from disclosure or whether they merely contend that the exemption applies to a subset of such records, and, if so, how that subset is defined in this case."  "The factual record, moreover, says nothing about whether the withheld information is, in fact, 'confidential' or whether the foreign NCB or others have previously revealed some or all of the information at issue."  "With respect to the law, Defendants' brief is even thinner."  "It says nothing, for example, about whether a foreign NCB that is seeking information from the USNCB or from U.S. law enforcement agencies constitutes a confidential source that has 'furnished information' . . . ."  "Likewise, it does not cite any case law relating to the application of Exemption 7(D) to Interpol; does not explicate whether Defendants are relying solely on an express assurance of confidentiality or also on an inferred assurance; and does not explain, if Defendants are indeed relying on an inferred assurance, how the four factor test is satisfied."
  
  Additionally, the court finds that "Defendant Interpol made some redactions pursuant to Exemption 7(D) in the sixteen pages that it then referred to DHS for processing and production to Plaintiff."  "For the same reasons discussed above, the Court concludes that Defendants have failed to carry their burden to demonstrate that Exemption 7(D) applies to those records."
   
• Exemption 7(E):  "The Court concludes that Defendants have met their modest burden of 'demonstrat[ing] logically how the release of the [internal website/url network path] might create a risk of circumvention of the law.'"  The court relates that "DHS avers that 'ICE applied FOIA Exemption (b)(7)(E) to protect from disclosure information related to an internal website/url network path located at the bottom of [several pages] referred [t]o ICE by USNCB' because it 'could be reasonably expected to allow a person to breach into sensitive law enforcement systems . . . and compromise the integrity of the data' within.'"  The court relates that "[defendant's] declaration explains that the relevant information is 'used for the purpose of indexing, storing, locating, and retrieving law enforcement sensitive information,' 'is not commonly known,' and could be 'used to decipher the meaning of codes.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "[A]t this juncture the Court will not pass on the segregability of any information withheld because, as discussed above, Defendant[s] [have] not yet adequately justified the considerable withholdings made pursuant to Exemption 7(D)."