Cullen v. United States Department of Homeland Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RUSSELL H. CULLEN,
Plaintiff,
v.
Civil Action No. 20-113 (TJK)
DEPARTMENT OF HOMELAND SECURITY
et al.,
Defendants.
MEMORANDUM OPINION
After his conviction on charges related to child pornography, Plaintiff filed two Freedom
of Information Act requests seeking records about his criminal case. The defendant agencies pro-
duced some records to him but withheld other material subject to several exemptions. Proceeding
pro se, Plaintiff brought this case seeking to compel more disclosure. Both sides now move for
summary judgment—Plaintiff by contesting the propriety of a small subset of those withholdings,
and Defendants by supporting the same. Defendants have met their burden to justify the withhold-
ings, so the Court will grant summary judgment in their favor.
I. Background
A federal jury convicted Plaintiff of possessing and distributing child pornography. See
generally United States v. Cullen, 796 F. App’x 976, 977–78 (11th Cir. 2019). Homeland Security
Investigations (“HSI”), an agency within the Department of Homeland Security (“DHS”), investi-
gated the offenses with which he was charged. See ECF No. 53-2 ¶ 17. The U.S. Attorney’s
Office for the Southern District of Florida, housed within the Department of Justice (“DOJ”), pros-
ecuted Plaintiff. See ECF No. 53-5 ¶¶ 6–7.
From prison, Plaintiff submitted two identical Freedom of Information Act (“FOIA”) re-
quests in 2018, one to DHS and the other to DOJ. See ECF No. 18 ¶¶ 4–8. The requests suggested
that Plaintiff sought documents related to his criminal case. He requested:
(1) Arrest reports; (2) Investigatory reports, including hand-written notes and final
drafts; (3) Reports of evidentiary, scientific, and regulatory information, findings
and conclusion; (4) Plea agreements of codefendant; (5) Charging documents;
(6) Classification of the ‘Charged Offense”; (7) Video tapes; (8) Telephonic re-
cording/transcripts; (9) Computer disks; (10) Computerized notepad disks;
(11) Photographs; (12) Completed and submitted forms . . . and reports; and
(13) all other information, data, and reports not listed above and otherwise not ex-
empted by law.
ECF No. 53-2 at 16–17; ECF No. 53-4 at 17–18.
DHS treated that request as seeking information about “investigative activity by HSI that
led to Plaintiff’s prosecution.” ECF No. 53-2 ¶ 17. Thus, an HSI representative searched that
agency’s systems for “terms including the name of the plaintiff, the plaintiff’s spouse, date of birth,
social security number and the title of the [criminal] case.” Id. ¶ 19. The agent’s search uncovered
responsive records, which a DHS FOIA office processed. See id. ¶¶ 20–30.
The parties dispute when DHS sent, and when Plaintiff received, its productions. But at
latest, by 2022, DHS had sent Plaintiff two productions. One contained 175 pages of records (14
pages produced in full and 161 pages produced in part), ECF No. 53-2 ¶¶ 20–24; and one contained
440 pages of records (154 pages produced in full and 286 pages produced in part), id. ¶¶ 20, 28–30.
DOJ directed staff at the U.S. Attorney’s Office for the Southern District of Florida to
search for its responsive records. ECF No. 53-4 ¶ 7. That office found responsive records and
sent them to a DOJ FOIA office for processing. See id. ¶ 18. DOJ initially produced documents
to Plaintiff in 2020. See id. ¶ 10. While this case was pending, it supplemented that production a
few times, including by reprocessing prior withholdings. See id. ¶¶ 11–13.
DOJ also located two “discs” that it believed had originated from HSI. ECF No. 53-4 ¶ 9.
2
DOJ believed the discs might contain child pornography. Id. ¶¶ 19–20. It sent the discs to HSI
for processing. Id.; ECF No. 53-2 ¶ 25. At first HSI’s FOIA office concluded they “could not be
processed due to the explicit content on the discs.” ECF No. 53-2 ¶ 25. Later, DHS directed an
HSI agent to enable processing by “segregating any non-explicit material from the explicit mate-
rial.” Id. ¶ 26. The agent did so, and DHS processed the result. See id. ¶ 27. DHS produced the
processable material to Plaintiff and withheld the segregated, non-processable material. See id.
Meanwhile, Plaintiff filed this case against DHS. See ECF No. 1. The Court later permit-
ted Plaintiff to amend his complaint to add DOJ as a defendant. See Min. Order of Apr. 27, 2020;
ECF No. 13. The operative complaint asserts claims under FOIA, the Privacy Act of 1974, and
the Administrative Procedure Act (“APA”). See id. at 1.
After Defendants answered that complaint, ECF Nos. 15, 23, the parties negotiated pro-
cessing and production for some time. See generally ECF Nos. 24–46. Eventually, Defendants
represented to the Court that they had completed processing. See ECF No. 45 at 5. Thus, the
Court set a briefing schedule for summary-judgment motions. See Min. Order of Jan. 19, 2022.
After that representation, however, Defendants supplemented their prior productions. See ECF
No. 53-2 ¶¶ 28–30; ECF No. 53-4 ¶¶ 11–13.
Both sides now move for summary judgment. Defendants say they have adequately
searched for responsive records, their withholdings are supported by correctly asserted exemptions
from disclosure, and they reasonably segregated nonexempt material from exempt material. ECF
No. 53 at 12–24. Plaintiff disputes whether two types of records are exempted, and as for one
type, whether Defendants have met their obligation to segregate nonexempt from exempt material.
ECF No. 55 at 2–6. Plaintiff notes he has “singled out just a few documents” from Defendants’
overall withholdings for challenge. See id. at 6 (emphasis omitted).
3
II. Legal Standard
A movant proves entitlement to summary judgment by showing “that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56. A dispute is not genuine if insufficient evidence supports one of its sides. See Edding-
ton v. U.S. Dep’t of Defense, 35 F.4th 833, 836–37 (D.C. Cir. 2022). A movant negates a genuine
dispute by demonstrating the inadequacy of the nonmoving party’s evidence on that point. See
Grimes v. District of Columbia, 794 F.3d 83, 93 (D.C. Cir. 2015). A dispute is material if it matters
under the governing law. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). So a movant
negates a material dispute by demonstrating that the point is “irrelevant or unnecessary” to resolv-
ing the legal issues. See Mayorga v. Merdon, 928 F.3d 84, 89 (D.C. Cir. 2019) (quotation omitted).
Applying both those principles, a court should enter summary judgment for a movant if no reason-
able jury could find for the nonmovant based on the evidence construed in the light most favorable
to the nonmovant. See Lopez v. Council on Am.-Islamic Relations Action Network, Inc., 826 F.3d
492, 496 (D.C. Cir. 2016).
FOIA requires federal agencies to “disclose information to the public upon reasonable re-
quest unless the records at issue fall within specifically delineated exemptions.” Judicial Watch,
Inc. v. FBI, 522 F.3d 364, 365–66 (D.C. Cir. 2008); see also 5 U.S.C. § 552(a)(3)(A). If the agency
invokes one of those exemptions, it “bears the burden of demonstrating [that it] applies.” Schaerr
v. DOJ, 69 F.4th 924 (D.C. Cir. 2023). To satisfy that burden, the agency can: (1) produce a
Vaughn index, 1 and (2) produce corresponding “affidavits from agency employees that describe
the justifications for nondisclosure with reasonably specific detail.” Waterman v. IRS, 61 F.4th
1A Vaughn index “correlates all withholdings with specific FOIA exemptions and the
agency’s specific nondisclosure justifications.” Pub. Citizen v. HHS, 66 F. Supp. 3d 196, 200 n.2
(D.D.C.2014) (citing Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.Cir.1973)).
4
152, 158 (D.C. Cir. 2023) (quotation omitted). The agency is entitled to summary judgment if the
Vaughn index and affidavits “show, with reasonable specificity, why the [requested] documents
fall within the exemption.” See Evans v. Fed. Bureau of Prisons, 951 F.3d 578, 583 (D.C. Cir.
2020) (quotation omitted).
Because Plaintiff proceeds pro se, the Court must construe his filings liberally. See Cun-
ningham v. DOJ, 40 F. Supp. 3d 71, 82 (D.D.C. 2014). But ultimately, pro se plaintiffs face the
same summary-judgment standard as other litigants, and so they must “respond[ ] to a motion for
summary judgment with evidence sufficient to show that the case raises a triable issue of fact.”
Husain v. Power, 630 F. Supp. 3d 188, 200 (D.D.C. 2022). That is, Plaintiff is subject to “the
same evidentiary burdens and presumptions as represented plaintiffs.” Penkoski v. Bowser, 548
F. Supp. 3d 12, 20 (D.D.C. 2021).
III. Analysis
A. Defendants are Entitled to Summary Judgment on Plaintiff’s FOIA Claims
1. The Court Considers Only the Arguments Plaintiff Asserts
Plaintiff’s cross-motion for summary judgment acknowledges that Defendants have not
produced many documents conceivably within the scope of his request. That includes documents
they have located but withheld—“many thousands,” by Plaintiff’s characterization. See ECF
No. 55 at 6 (emphasis omitted). Yet he “has singled out just a few documents” for which he
challenges the government’s nonproduction. See id. (emphasis omitted). By so limiting the scope
of his summary-judgment arguments, Plaintiff has waived any entitlement to the Court’s further
review. 2 Generally, to preserve a summary-judgment argument, a party must assert it in its
2
The Court uses the term “waiver” and not “forfeiture” because Plaintiff’s motion makes
clear that his decisions to challenge only some of Defendants’ withholdings and not to challenge
the adequacy of its searches were intentional. “[F]orfeiture is the failure to make the timely
5
opening brief. See Shapiro v. DOJ, 239 F. Supp. 3d 100, 120 (D.D.C. 2017). So if a FOIA plain-
tiff’s opening brief does not contest the adequacy of the search, courts routinely disregard that
issue. See, e.g., Bloche v. Dep’t of Def., 414 F. Supp. 3d 6, 24 n.5 (D.D.C. 2019). Similarly, courts
do not address the propriety of withholdings the plaintiff does not contest. See, e.g., Nat’l Sec.
Counselors v. CIA, 206 F. Supp. 3d 241, 281 n.3 (D.D.C. 2016). 3 This Court will do the same.
2. Defendants Have Justified the Contested Withholdings
Plaintiff challenges two sets of withholdings. The first consists of withheld “DVDs” and
“hard copies” of “computer forensic[ ] reports.” ECF No. 53-2 at 30–33 (Vaughn index); see also
ECF No. 55 at 2–3, 5–6. The second includes “a printout of child erotica sites” and “screenshots
of the HSI Child Protection System.” ECF No. 53-2 at 37–39 (Vaughn index); see also ECF
No. 55 at 4–5. In response to Plaintiff’s arguments about the second set of withholdings, Defend-
ants produced more material. See ECF No. 58 at 4; ECF No. 58-1 ¶¶ 6–8. Thus, what now remains
of the second set of withholdings is a “list of file names,” see ECF No. 58-1 ¶ 8.
The Court has reviewed Defendants’ Vaughn index and the affidavits they submitted to
explain the withholdings. As explained further below, those documents show with reasonable
specificity why at least one FOIA exemption applies to the remaining withholdings. See Evans,
951 F.3d at 583. So the Court will grant summary judgment to Defendants.
assertion of a right, [and] waiver is the intentional relinquishment or abandonment of a known
right.” Harris v. Sec’y, U.S, Dep’t of Veterans Affs., 126 F.3d 339, 343 n.2 (D.C. Cir. 1997) (quo-
tation omitted). Plaintiff expressly challenges only some of Defendants’ withholdings as errone-
ous. See ECF No. 55 at 6–7; see also ECF No. 60 at 6.
3
Although courts may overlook even an intentional waiver if justice so requires, see gen-
erally Am. Ctr. for L. and Just. v. DOJ, 325 F. Supp. 3d 162, 169 (D.D.C. 2018), there is no basis
for that here—Plaintiff has never tried to raise the arguments the Court considers waived. The
Court mentions waiver only to explain the scope of the arguments it addresses below.
6
a. Defendants Have Justified the Challenged Withholdings from
the Computer Forensic Reports
The first category of contested holdings comprises two forms of the same “computer fo-
rensic[ ] reports.” Defendants say they withheld some of that material because it contains “sex-
ually explicit material,” including child pornography. ECF No. 53-2 at 30. They asserted three
FOIA exemptions to justify withholding this material: Exemption 3, Exemption 6, and Exemp-
tion 7(C). See id. at 30–32.
Defendants’ affidavits provide more detail. As the HSI case agent explains, he located
“DVDs containing computer forensic reports, excel spreadsheets, computer forensic reports con-
verted to paper form and word documents containing [sexually] explicit material.” ECF No. 53-3
¶ 7. At first, he did not send that material for processing because it contained sexually explicit
material, which “[o]nly certain individuals . . . are authorized to review.” See id. ¶¶ 7–8. Later,
he found a “version of the forensic report DVD” from which “prohibited material had been segre-
gated based on a line by line review.” See id. ¶ 11. He sent only that material to the applicable
FOIA office for processing. Id.
Plaintiff contests that withholding. See ECF No. 55 at 2–3, 5–6. He acknowledges that
FOIA does not require disclosure of child pornography, but he says such material constituted a
very small part of the files on his computer. See id. at 5–6. The legal, adult pornography, he
believes, should have been disclosed. See id. at 2–3. He also thinks that, in any event, much more
non-sexually explicit material that was on his computer must have been on the DVDs and thus
should have been segregated from the sexually explicit material and produced. See id. at 5–6.
i. Defendants Properly Invoked Exemption 7(C)
To justify withholding the adult pornography, Defendants assert two related exemptions:
Exemptions 6 and 7(C). The former applies to “personnel and medical files and similar files the
7
disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(6). The latter applies to “records or information compiled for law enforcement
purposes . . . to the extent [its] production . . . could reasonably be expected to constitute an un-
warranted invasion of personal privacy.” Id. § 552(b)(7). Both protect similar interests, but Ex-
emption 7(C) establishes a “somewhat broader” carve-out than does Exemption 6. See McCutchen
v. HHS, 30 F.3d 183, 184–85 (D.C. Cir. 1994) (quoting DOJ v. Reporters Comm. for Freedom of
the Press, 489 U.S. 749, 756 (1989)). So if Exemption 7(C) applies, courts need consider only its
wider scope. See, e.g., Am. Civil Liberties Union v. DOJ, 655 F.3d 1, 6 (D.C. Cir. 2011).
Disclosing even adult pornography, Defendants say, “would reasonably be expected to
constitute an unwarranted invasion of personal privacy” under Exemption 7(C). See ECF No. 53-2
at 32. They also claim associating those individuals publicly with “law enforcement investiga-
tions” by releasing the images in the context of “records compiled for law enforcement purposes”
would risk stigmatizing the third parties, an interest protected by the same exemption. See id.Plaintiff disagrees. He asks the Court to “[c]onsider the high likelihood that all of this
material was commercially produced.” ECF No. 55 at 2. He assures the Court he did not have
material recorded without the subject’s consent. Id. Because of that supposed consent and public
disclosure, he argues, the subjects depicted in the material have no cognizable privacy interests
that could prevent disclosure. See id. at 2–3. He also contends that a mere association with law
enforcement is not the sort of harm courts have previously recognized as potentially stigmatizing.
See id. at 3. No subject depicted is, after all, an “agent, cooperator, target, or witness in the under-
lying criminal case.” Id.The Court has no trouble concluding that Exemption 7(C) applies here. For starters, the
threshold requirement—“compiled for law enforcement purposes,” 5 U.S.C. § 552(b)(7)—is
8
easily satisfied. As the HSI case agent explained, “the only documents that were identified as
pertaining to Plaintiff concerned documents related to the investigation of the matter for which
Plaintiff was prosecuted.” ECF No. 53-3 ¶ 6. And a document is “compiled for law enforcement
purposes” if “it was created as part of the government’s investigation and criminal prosecution.”
Boyd v. Exec. Office of U.S. Att’ys, 161 F. Supp. 3d 1, 10 (D.D.C. 2015). Thus, the forensic report,
the source of the withheld pornography, was compiled for law-enforcement purposes because HSI
created it as part of its investigation and DOJ’s prosecution of Plaintiff for possessing and distrib-
uting child pornography. Plaintiff does not contest that this threshold requirement is met.
The question, then, is whether producing the records “could reasonably be expected to
constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). To answer that
question, the Court must “balance the privacy interests that would be compromised by disclosure
against the public interest in release of the requested information.” See Beck v. DOJ, 997 F.2d
1489, 1491 (D.C. Cir. 1993).
Start with the privacy interests implicated. No doubt, sexually explicit images implicate
privacy interests. For one thing, the “general rule” is that any “third-party identifying information
contained in [law-enforcement] records is categorically exempt from disclosure.” See Lazaridis
v. U.S. Dep’t of State, 934 F. Supp. 2d 21, 38 (D.D.C. 2013). Thus, record custodians should
withhold “names, addresses, or other identifiers of individuals mentioned in investigatory files.”
Nation Mag. v. U.S. Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995) (emphasis added). Such
other identifiers, of course, include photographs and videos. See Showing Animals Respect &
Kindness v. U.S. Dep’t of the Interior, 730 F. Supp. 2d 180, 197 (D.D.C. 2010). And few if any
types of identifiers implicate personal privacy more than those at issue here. On this record, this
9
alone counts as a significant privacy interest. 4
Even apart from the subjects’ privacy interests in the images themselves, the Court disa-
grees with Plaintiff that there is no risk of stigma from association with law enforcement. True,
as he says, there is no reason to think the withholdings depict persons directly involved in his case
or the supporting the investigation. See ECF No. 55 at 3. The Circuit, however, has recognized a
much broader “primary purpose of Exemption 7(C)”—protecting individuals’ interests in “not be-
ing associated unwarrantedly with alleged criminal activity.” See Stern v. FBI, 737 F.2d 84, 92
(D.C. Cir. 1984). Although that interest is often discussed in the context of direct participants in
criminal proceedings, the Court has no reason to think it is confined to such individuals. 5 And for
those depicted in sexually explicit material found on Plaintiff’s computer—a state over which they
had imperfect (or likely no) control—there is an obvious potential unwarranted association with
criminal activity: Their images were found in a collection that contained child pornography too.
For these reasons, the Court agrees with Defendants that disclosure could create a “stigmatizing
connotation” for affected individuals. See ECF No. 53-2 at 30. Thus, the Court can “reasona-
bly . . . expect[ ]” disclosure to invade their privacy interests. See 5 U.S.C. § 552(b)(7)(C).
Plaintiff attempts to defeat that inference with the public-domain doctrine. He cites, for
example, Cottone v. Reno, 193 F.3d 550 (D.C. Cir. 1999). ECF No. 60 at 4. There, the Circuit
4
Plaintiff raises the possibility that the pornographic images were commercially produced,
which the Court addresses below in the context of his invocation of the public-domain doctrine.
If that were so, and if the images were produced for dissemination with the knowing and voluntary
consent of the persons depicted, perhaps all of that would erode the privacy interests at stake. But
the Court has no basis to so conclude.
5
Cf. SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991) (“[U]nless access
to the names and addresses of private individuals in files within the ambit of Exemption 7(C) is
necessary . . . to confirm or refute compelling evidence that the agency is engaged in illegal activ-
ity, such information is exempt from disclosure.”).
10
recognized that “materials normally immunized from disclosure under FOIA lose their protective
cloak once disclosed and preserved in a permanent public record.” Cottone, 193 F.3d at 554. But
to invoke that doctrine, Plaintiff has the burden to show “there is a permanent public record of the
exact portions [of the records] he wishes to obtain.” See People for the Ethical Treatment of
Animals v. HHS, 901 F.3d 343, 352 (D.C. Cir. 2018) (quotation omitted); Callaway v. U.S. Dep’t
of the Treasury, No. 04-CV-1506 RWR, 2007 WL 7698581, at *12 (D.D.C. Aug. 31, 2007) (ap-
plying that principle to Exemption 7(C)). That is, before the Court can apply the public-domain
doctrine, it must “scrutinize whether the plaintiff has proven that the information sought is in the
public domain.” Jud. Watch, Inc. v. HHS, 525 F. Supp. 3d 90, 104 (D.D.C. 2021).
Plaintiff has not come close to proving that. His argument rests an unsupported assump-
tion: “the high likelihood that all of this material was commercially produced.” ECF No. 55 at 2.
But his supposition just doesn’t cut it. Plaintiff does not even assert, much less meet his burden to
prove, that the material existed anywhere other than his own computer, let alone that there is a
permanent record of it in the public domain. 6
For these reasons, disclosure of this material would implicate third-parties’ privacy inter-
ests. All that remains is to balance that intrusion against any public interest in disclosure.
The Court cannot conceive of any such public interest. The public interest is served by
information that enlightens the public about “what the Government is up to.” See Reporters
Comm. for Freedom of the Press, 489 U.S. at 780. But disclosure of third-party information is
disfavored “when the requester asserts a public interest—however it might be styled—in obtaining
6
Even if Plaintiff had met his burden on this point, his argument about the images them-
selves does not address the second impact on privacy interests at stake: potential publicization of
the fact that the images were found in a collection that contained child pornography. There is no
basis for thinking there is a permanent record of that fact in the public domain.
11
information that relates to a criminal prosecution.” Blackwell v. FBI, 646 F.3d 37, 41 (D.C. Cir.
2011). That is so because a criminal defendant’s interest in challenging his conviction does not
count as a public interest under this exemption. See, e.g., Roth v. DOJ, 642 F.3d 1161, 1177 (D.C.
Cir. 2011) (Despite a criminal defendant’s “intense personal interest” in information about his
case, his “personal stake in the release of the requested information is irrelevant to the balancing
of public and third-party privacy interests required by Exemption 7(C).” (quotation omitted)).
The Court is at a loss to explain how disclosing sexually explicit images found on Plain-
tiff’s computer would advance a public interest. Plaintiff says he wants the documents “because
they are not supposed to be there.” ECF No. 60 at 3. As best the Court can tell, he means the
government was untruthful in prosecuting his criminal case because it asserted in that case that
“no adult material was ever recovered from the computer forensics used in prosecuting him.” See
id. at 3–4. But whatever may have happened there, in litigating this case, the government publicly
acknowledged that it found this material on his computer. See ECF No. 53-2 ¶ 27. The images
themselves add nothing to the public interest. Thus, the Court agrees with Defendants that dis-
closing the records “serves no public benefit.” ECF No. 53-2 at 32.
Without any public interest in disclosure, the balancing test is easy to apply. “Any amount
of privacy expectation outweighs [a] . . . nonexistent public interest.” See Brown v. FBI, 873 F.
Supp. 2d 388, 403 (D.D.C. 2012). Thus, Defendants properly invoked Exemption 7(C) to withhold
the images, and they are entitled to summary judgment in that respect.
ii. Defendants Reasonably Segregated Nonexempt Records
Plaintiff also argues that even if the sexually explicit images may be withheld from the
forensic reports, the reports contained other material that should have been produced. See ECF
No. 55 at 5–6. He says the reports should reflect the contents of devices that also contained “vo-
luminous amounts of personal and business data,” which he argues could have been segregated
12
from sexually explicit material and then produced. See id. at 6.
Indeed, Defendants did just that. As one of the DHS FOIA officers explained, the material
that was withheld “in full” was the version of the forensic report that contains sexually explicit
material. See ECF No. 53-2 ¶ 28. But she also processed a “clean” version of the same report,
which resulted in 440 pages of production. See id. ¶¶ 29–30. As the HSI case agent described it,
that clean version was created by “line by line review” that segregated sexually explicit material
from other material. See ECF No. 53-3 ¶ 11. Thus, the records Plaintiff seeks with this argument
have already been processed and produced, subject to other withholdings he does not challenge.
Insofar as Plaintiff claims that even more information should have been produced, he has
not given the Court any basis to so conclude. As the Court explained above, Defendants have
shown that this report contained exempt material, which it may withhold. Under those circum-
stances, the Court must presume they “complied with the obligation to disclose reasonably segre-
gable material.” Flyers Rts. Educ. Fund, Inc. v. FAA, 71 F.4th 1051, 1058 (D.C. Cir. 2023) (quo-
tation omitted). To overcome that presumption, the requester must produce at least some evidence
“that would warrant a belief by a reasonable person” that the agencies failed to segregate. See
Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007) (quotation omitted). For
that purpose, “unsubstantiated assertions” will not do. Flyers Rts. Educ. Fund, 71 F.4th at 1058.
Plaintiff offers only unsubstantiated—and vague—assertions. Defendants’ witness swears
that the processed version of the report was separated from the version containing exempt material
by “line by line review.” ECF No. 53-3 ¶ 11. That declaration suffices for the Court to find that
the agency reasonably segregated nonexempt material. See Porup v. CIA, 997 F.3d 1224, 1239
(D.C. Cir. 2021). Against that declaration, Plaintiff “confidently assures” the Court that his de-
vices contained data that was not produced to him as part of the forensic report. ECF No. 55 at 6.
13
But this assurance does not mention a single, concrete example of a missing file or explain why
such a file would have been segregable. And even if the Court could conclude from this represen-
tation that his devices contained data that was not produced back to him, explanations for that
disconnect abound. That data may have been part of a withholding that Plaintiff has not chal-
lenged. Or for whatever reason, the forensic report may not have captured all the data on each
device. At bottom, Plaintiff’s vague assertion does not give the Court reason to question the pre-
sumption to which Defendants are entitled through their declaration. Thus, the Court will grant
summary judgment for Defendants on that claim.
b. Defendants Have Justified Withholding the File Names
What remains of the second category of contested material is a “list of file names of child
pornography links and images,” which have been redacted from material produced to Plaintiff.
See ECF No. 58-1 ¶ 8. The redactions do not contain the images themselves—just the text of links
to files stored elsewhere. See id. But a FOIA officer has sworn that “the links could be used to
readily access such images from the internet by the simple act of typing these file names into a
computer.” Id. Thus, Defendants have again asserted that Exemptions 6 and 7(C) apply to protect
the privacy interests of the subjects depicted in the images. See ECF No. 53-2 at 37–39.
Plaintiff contests those redactions on factual grounds. He thinks the declarant is mistaken
that the links could be used to access child-sex-abuse material and “is willing to wager” the de-
clarant has not verified this claim. ECF No. 60 at 2–3. He also points out that many purported
links to material on the internet are “dead,” meaning that the material has been deleted or is other-
wise inaccessible. See id. at 3. 7 And he claims that, during his criminal trial, prosecutors never
7
This claim is somewhat difficult to square with Plaintiff’s assertion a few pages later that
“everything . . . put on the Internet is there permanently.” ECF No. 60 at 5.
14
mentioned having found any such links on his computer, and he does not “believe the prosecution
simply overlooked such damaging evidence.” Id. at 2.
The problem for Plaintiff is that the affidavit on which Defendants rely is detailed and
nonconclusory on these points. And because of those qualities, it is “afforded a presumption of
good faith, which the requester cannot rebut with purely speculative claims.” See Eddington, 35
F.4th at 837 (quotation omitted). In any event, “[f]actual assertions in the moving party’s affidavits
or declarations may be accepted as true unless the opposing party submits his own affidavits, dec-
larations, or documentary evidence to the contrary.” Jud. Watch, Inc. v. U.S. Dep’t of State, 235
F. Supp. 3d 310, 312 (D.D.C. 2017). Plaintiff’s speculation is nothing of the sort, and it does not
create a factual dispute on these points.
Given the risks of publicizing these links, the applicability of Exemption 7(C) is obvious.
As explained above, information in law-enforcement records that identifies third parties is “cate-
gorically exempt from disclosure.” See Lazaridis, 934 F. Supp. 2d at 38. Here, that rationale is
especially strong because the subjects depicted are underage crime victims with a “cognizable
privacy interest” in avoiding further distribution of the images and association with this case. See
Accurso v. FBI, No. 19-CV-2540 (CKK), 2021 WL 411152, at *5 (D.D.C. Feb. 5, 2021) (collect-
ing cases). Plaintiff acknowledges that interest. See ECF No. 60 at 2. There is also no public
interest in further disseminating such material. So again, the Court must weigh serious intrusions
on privacy against a “nonexistent public interest.” See Brown, 873 F. Supp. 2d at 403. Thus,
Defendants have shown that disclosure would “reasonably be expected to constitute an unwar-
ranted invasion of personal privacy” under Exemption 7(C). ECF No. 53-2 at 38. And so they are
entitled to summary judgment.
* * *
15
For both sets of withholdings Plaintiff challenges, then, Defendants’ Vaughn index and
affidavits “show, with reasonable specificity, why the [requested] documents fall within the ex-
emption.” See Evans, 951 F.3d at 583. Accordingly, the Court will deny Plaintiff’s cross-motion
for summary judgment and grant Defendants’ motion for summary judgment.
3. The Court Will Not Conduct in Camera Review
Plaintiff asks the Court to review in camera the records for which he challenges Defend-
ants’ withholdings. ECF No. 55 at 6–7; ECF No. 60 at 6. But “it is not necessary for district courts
to conduct an in camera inspection in every FOIA case.” Evans, 951 F.3d at 588. Such inspec-
tions, in fact, “should not be resorted to as a matter of course.” Quiñon v. FBI, 86 F.3d 1222, 1228
(D.C. Cir. 1996) (emphasis added). Thus, where custodial agencies have met their summary-judg-
ment burden by affidavits, “in camera review is neither necessary nor appropriate.” Larson v.
Dep’t of State, 565 F.3d 857, 870 (D.C. Cir. 2009) (quotation omitted). As the Court explained
above, Defendants met their summary-judgment burden through detailed, specific affidavits that
demonstrate (1) the applicability of Exemption 7(C) and (2) their reasonable segregation of non-
exempt material. So the Court will not conduct in camera review.
B. Defendants are Entitled to Summary Judgment on Plaintiff’s Other Claims
Plaintiff also asserts claims under the Privacy Act of 1974, 5 U.S.C. § 552a, and the APA,
5 U.S.C. § 701 et seq. See ECF No. 13 at 1. For the following reasons, Defendants are entitled to
summary judgment on those claims.
The Privacy Act does not apply to the records Plaintiff seeks. That statute allows agencies
whose “principal function . . . pertain[s] to the enforcement of criminal laws, including police ef-
forts to . . . apprehend criminals, and the activities of prosecutors” to be exempt from mandatory
disclosure. See 5 U.S.C. § 552a(j). Thus, systems containing “criminal case files” are exempt
from disclosure under the Privacy Act. See 28 C.F.R. § 16.81(a)(4); Corley v. DOJ, 998 F.3d 981,
16
988 (D.C. Cir. 2021). So the Court will grant summary judgment for Defendants insofar as Plain-
tiff’s complaint asserts a Privacy Act claim.
Plaintiff’s APA claim is impermissibly duplicative. The APA applies to agency actions
“for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. So a plaintiff has no
APA claim if another statute provides a “special, alternative remedy.” See Citizens for Resp. &
Ethics in Wash. v. DOJ, 846 F.3d 1235, 1244 (D.C. Cir. 2017). That remedy need not be a perfect
substitute for what the APA would provide—only “relief of the same genre” that does not create
a “yawning [remedial] gap.” See id. at 1245–46 (quotation omitted). Plaintiff’s complaint appears
to seek only the release of records. See ECF No. 13 at 5. That relief, of course, is the heartland of
what FOIA offers. But in any event, “FOIA ‘imposes no limits on courts’ equitable powers in
enforcing its terms,’” so in general the “remedies available . . . under FOIA . . . provide the same
relief . . . as would the APA.” See Feinman v. FBI, 713 F. Supp. 2d 70, 77 (D.D.C. 2010) (quoting
Payne Enters., Inc. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988)). Thus, Plaintiff has an
adequate remedy elsewhere, precluding an APA claim. And Defendants are entitled to summary
judgment insofar as his complaint asserts such a claim.
IV. Conclusion
For all the above reasons, the Court will deny Plaintiff’s Cross-Motion for Summary Judg-
ment, and grant Defendants’ Motion for Summary Judgment. A separate order will issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: August 30, 2023
17