Ocasio v. U.S. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JUAN CARLOS OCASIO, )
)
Plaintiff, )
)
v. ) Case No. 13-cv-0921 (TSC)
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U.S. DEPARTMENT OF JUSTICE, )
)
Defendant. )
)
MEMORANDUM OPINION
In this case brought under the Freedom of Information Act (“FOIA”), the court
previously granted in part and denied in part Defendant U.S. Department of Justice’s (“DOJ”)
first motion for summary judgment against pro se Plaintiff Juan Carlos Ocasio. (ECF No. 24).
Before the court is Defendant’s second motion for summary judgment. (ECF No. 45). Upon
consideration of the motion, supplemental declaration, and Vaughn index, and Plaintiff’s
opposition, the court hereby GRANTS Defendant’s motion.
I. BACKGROUND
On June 11, 2012, Plaintiff filed a FOIA request with the DOJ Office of Inspector
General (“DOJ-OIG”). (ECF No. 4 at 3). The request sought several documents relating to the
investigation of a Federal Bureau of Investigation (“FBI”) complaint Plaintiff had filed in March
1994. (Id.; Compl. ¶¶ 5–6). In that complaint, Ocasio alleged that an individual—referenced
herein as “C.G.”—had illegally impersonated a federal officer and violated the Stolen Valor Act
by falsely claiming the receipt of military honors. (Compl. ¶¶ 5–9; ECF No. 10 at 2–5). On
November 19, 2012, DOJ-OIG denied the FOIA request, stating that the documents had been
destroyed, and DOJ-OIG subsequently denied Ocasio’s appeal on May 29, 2013, reaffirming that
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the documents had been destroyed and noting that had they not been, they would be categorically
exempt from disclosure under 5 U.S.C. § 552(b)(7)(C). (ECF No. 4 at 11, 17–18).
After Plaintiff filed his Complaint in June 2013, a DOJ-OIG FOIA Officer again searched
for the requested files and found that they had not been destroyed, as had previously been
reported to Plaintiff. (Waller Decl. ¶ 10 (ECF No. 8-1); Waller Suppl. Decl. ¶ 4 (ECF No. 18-
2)). The FOIA officer reviewed all 296 pages of the responsive file and “determined that the
entire file constitute[d] law enforcement records of an individual that are exempt from disclosure
under FOIA exemption 7(C),” and that “[t]he exemption applie[d] to the entire file.” (Waller
Supp. Decl. ¶ 5).
Defendant filed a motion to dismiss and/or for summary judgment in August 2013 (ECF
No. 8), which the court denied in part and granted in part in its September 2014 Opinion. (ECF
No. 22). The court found that DOJ had conducted an adequate search (id. at 11), that the
requested records are law enforcement records, and that C.G. has a privacy interest in
nondisclosure of the records (id. at 12–14). Moreover, the court held that while there is no
public interest under FOIA in identifying those who falsely claim military honors or who
impersonate officers, or in disclosing documents that may be used to cast doubt on the credibility
of witnesses in past federal proceedings, there is a public interest in knowing “what the
government is up to” (id. at 15–16). Specifically, the court held:
There is therefore some public interest in “what the government is up to” in this
case with respect to the substantive law enforcement policy DOJ employed in
handling its investigation: how DOJ investigated an individual accused of
making arrests under the guise of federal legal authority, and why DOJ failed to
prosecute such an individual. Contrary to DOJ’s assertion, the investigation file
might reveal something about the agency’s own conduct.
(Id. at 18). The court declined to rule on the strength of this asserted public interest,
stating that while it could not “conclude that there is no public interest in the disclosure of
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the records[,] . . . Ocasio may have not alleged enough to require disclosure[.]” (Id. at
17–18).
Finally, the court denied summary judgment as to the adequacy of Defendant’s
balancing of the privacy interest and the public interest in disclosure. (Id. at 23). While
the court noted that it may be appropriate to apply Exemption 7(c) categorically—i.e., to
withhold the documents in their entirety because they are of a type such that the privacy
interest always outweighs the public interest in disclosure—the court determined that
Defendant did not sufficiently explain why applying this exemption categorically was
appropriate in this case. The court further found that, if Defendant did not apply the
exemption categorically, then it also failed to show through a Vaughn index whether it
appropriately determined, record-by-record, which documents should be withheld. The
court therefore ordered Defendant to produce a Vaughn index explaining the reasoning
for each withholding. (Id. at 23–24).
Defendant filed its Vaughn index on November 14, 2014 (ECF No. 28), and
moved for summary judgment on October 14, 2015 (ECF No. 45). It also provided
Plaintiff with fifty-four pages of responsive documents, “all of which Plaintiff had
provided to the OIG” originally. (Waller Second Suppl. Decl. ¶ 3 (ECF No. 45-2)).
Defendant states that the “remaining documents within the investigative file are all
inextricably intertwined with [] witness statements, affidavits, and memoranda,” and
“redaction or segregation of these documents is [] not possible because even with
thorough redactions, a reader would be able to ascertain that each of these documents
concern the investigation of criminal charges against C.G.” (Id. at ¶¶ 6–7).
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II. LEGAL STANDARD
Summary judgment is appropriate where the record shows there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298
F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists,
the court must view all facts in the light most favorable to the non-moving party. See Adickes v.
S.H. Kress & Co., 398 U.S. 144, 157 (1970). A fact is material if “a dispute over it might affect
the outcome of a suit under governing law; factual disputes that are ‘irrelevant or unnecessary’
do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d 889, 895
(D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue
is genuine if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. (quoting Anderson, 477 U.S. at 248). The party seeking summary
judgment “bears the heavy burden of establishing that the merits of his case are so clear that
expedited action is justified.” Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294, 297 (D.C.
Cir. 1987).
FOIA cases are “typically and appropriately” decided on motions for summary judgment.
Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 762 F. Supp.
2d 123, 130 (D.D.C. 2011). Upon an agency’s motion for summary judgment on the grounds
that it has fully discharged its FOIA obligations, all underlying facts and inferences are analyzed
in the light most favorable to the FOIA requester; only after an agency proves that it has fully
discharged its FOIA obligations is summary judgment appropriate. Moore v. Aspin, 916 F.
Supp. 32, 35 (D.D.C. 1996).
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In cases concerning the applicability of exemptions, summary judgment may be based
solely on information provided in the agency’s supporting declarations. See, e.g., ACLU v. U.S.
Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011); Students Against Genocide v. Dep’t of State,
257 F.3d 828, 838 (D.C. Cir. 2001). “If an agency’s affidavit describes the justifications for
withholding the information with specific detail, demonstrates that the information withheld
logically falls within the claimed exemption, and is not contradicted by contrary evidence in the
record or by evidence of the agency’s bad faith, then summary judgment is warranted on the
basis of the affidavit alone.” ACLU, 628 F.3d at 619. “Ultimately, an agency’s justification for
invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Id. (internal
quotation marks omitted) (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)).
However, a motion for summary judgment should be granted in favor of the FOIA requester
where “an agency seeks to protect material which, even on the agency’s version of the facts, falls
outside the proffered exemption.” Coldiron v. U.S. Dep’t of Justice, 310 F. Supp. 2d 44, 48
(D.D.C. 2004) (internal quotation marks omitted) (quoting Petroleum Info. Corp. v. Dep’t of
Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992)).
III. DISCUSSION
In considering Defendant’s second motion for summary judgment, the court is again
tasked with assessing the applicability of the law enforcement FOIA exemption, 5 U.S.C.
§ 552(b)(7)(C) (“Exemption 7(C)”), to the facts of this case. Under this exemption, FOIA “does
not apply” to “records or information compiled for law enforcement purposes” to the extent that
their disclosure “could reasonably be expected to constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(7)(C). As noted above, the court previously held that the requested
files are law enforcement records, that C.G. has a privacy interest in nondisclosure, and that there
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is at least a minimal public interest in disclosing how DOJ investigated the accused individual.
The court must now determine if Defendant properly balanced these private and public interests
when it withheld the responsive records.
Under Exemption 7(C), the agency (and the court) must balance the privacy and public
interests to determine whether disclosure of the responsive records would result in an
“unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). If this balancing
“characteristically tips in one direction,” then the records may be categorically exempt from
disclosure. Citizens for Responsibility & Ethics in Wash. v. DOJ, 746 F.3d 1082, 1095 (D.C.
Cir. 2014) (“CREW”) (emphasis omitted). Such a categorical withholding of records is
appropriate when “a third party’s request for law enforcement records or information about a
private citizen” is balanced against a request that “seeks no ‘official information’ about a
Government agency, but merely records that the Government happens to be storing.” DOJ v.
Reporters Comm. for Freedom of Press, 489 U.S. 749, 780 (1989). Moreover, if the asserted
public interest “is to show that responsible officials acted negligently or otherwise improperly in
the performance of their duties, the requester must establish more than a bare suspicion in order
to obtain disclosure. Rather, the requester must produce evidence that would warrant a belief by
a reasonable person that the alleged Government impropriety might have occurred.” Nat’l
Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004).
In its previous Opinion, the court held that “DOJ [did] not clearly explain into what
‘genus’ the disputed records fall such that they characteristically tip in favor of non-disclosure[,]
. . . [and] [t]he Court [could not] assess on the record before it whether DOJ actually engaged in
a balancing test to determine what portions of the file were exempt under 7(C).” (ECF No. 22 at
21). Defendant now argues that it has properly applied Exemption 7(C) to all of the responsive
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documents because “it will ‘always [be] true that the damage to a private citizen’s privacy
interest’ from disclosure of any responsive document in the category ‘outweighs the FOIA-based
public value of such disclosure’” when the public interest is based on unsupported allegations of
impropriety. (Def. Br. at 12 (ECF No. 45-1) (quoting Reporters Comm., 489 U.S. at 779)).
After a careful review of the Waller Declaration and Plaintiff’s description of the public interest
here, the court agrees that in this case, Defendant has properly applied Exemption 7(C).
As already determined, the target of the requested FBI investigation records, C.G., has a
strong privacy interest in nondisclosure of the records, which Plaintiff does not dispute. (ECF
No. 22 at 14); see also SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1205 (D.C. Cir. 1991)
(internal quotation marks omitted) (“There is little question that disclosing the identity of targets
of law-enforcement investigations can subject those identified to embarrassment and potentially
more serious reputational harm.”). Defendant’s position is that there is no possible way to
segregate the responsive records “because each page within the investigative report related to
Plaintiff’s unproven allegations of criminal conduct against C.G.” (Waller Second Supp. Decl. ¶
5).
Plaintiff’s asserted public interest in disclosure stems from his allegation of “government
impropriety.” (ECF No. 52 at 7). While Plaintiff explains at length why he believes that C.G. is
guilty of several criminal offenses, it bears reiterating that the court’s role here is not to
determine the credibility or veracity of these allegations, or pass judgment on the appropriateness
of the decision to not prosecute C.G. Instead, the court must only evaluate whether the public
interest here may overcome C.G.’s privacy interest in order to require disclosure. As noted
above, Plaintiff was obligated to “produce evidence that would warrant a belief by a reasonable
person that the alleged Government impropriety might have occurred.” Boyd v. Crim. Div. of
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DOJ, 475 F.3d 381, 387 (D.C. Cir. 2007) (quoting Favish, 541 U.S. at 174). Plaintiff did not
produce such evidence. Moreover, in light of the lack of evidence of impropriety, the court
agrees with Defendant’s arguments distinguishing the facts here with the significantly higher
profile investigations in CREW, involving the investigation of former House Majority Leader
Tom Delay, and Kimberlin v. DOJ, 139 F.3d 944 (D.C. Cir. 1998), involving the improper
release of information concerning the Vice President. Unlike those cases, in which a record-by-
record approach was deemed necessary, here there is little likelihood that the documents would
“shed light on how the agencies are performing their statutory duties.” CREW, 746 F.3d at 1096.
Therefore, the court now finds that Plaintiff has not established a sufficient public interest
to outweigh C.G.’s strong privacy interest, and furthermore that, given these investigative files
involved a low-level government employee and there is no public interest, the responsive records
are of a type that may be categorically exempt under Exemption 7(C). The Defendant’s second
motion for summary judgment is therefore granted as to the appropriateness of its categorical
withholding of responsive records.
IV. CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED.
Date: December 1, 2016
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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