Vaskas v. U.S. Department of Homeland Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THADDEUS VASKAS,
Plaintiff,
v.
Civil Action No. 21-1447 (TSC)
U.S. DEPARTMENT OF HOMELAND
SECURITY, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff, proceeding pro se, has sued the U.S. Department of Homeland Security
(“DHS”) and U.S. Immigration and Customs Enforcement (“ICE”) under the Freedom of
Information Act (“FOIA”). See Am. Compl., ECF No. 3. He claims Defendants unlawfully
withheld records he requested under FOIA regarding their involvement in his federal criminal
conviction. Id. ¶¶ 2, 4. Defendants have moved for summary judgment. ECF No. 12. For the
reasons set forth below, the court will GRANT Defendants’ motion.
I. BACKGROUND
In July 2020, Plaintiff submitted a FOIA request to DHS, seeking information regarding
its “involvement in [his] federal conviction in United States v[.] Thaddeus Vaskas, Eastern
District of Pennsylvania, Crim Case No. 12-128.” Compl. ¶ 4; see United States v. Vaskas, No.
CR 12-128, 2016 WL 1273921 at *1 (E.D. Pa. Mar. 31, 2016) (noting that Plaintiff was
convicted of one count of possession of child pornography and sentenced to 168 months of
incarceration followed by fifteen years of supervised release), aff’d, 696 F. App’x 564 (3d Cir.
2017). He narrowed that request after DHS asked him to be “more specific and detailed.”
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Compl. ¶ 5. Upon “learning that neither of the Defendants” were “working toward fulfilling
[his] FOIA request, Plaintiff filed an “Administrative Appeal” and was informed that his request
was “in the queue to be processed by an analyst.” Id. ¶ 6. He now seeks a declaration that
Defendants violated FOIA by failing to produce records responsive to his request, and an order
that they do so immediately. Id. at 4.
By sworn declaration, Defendants state that upon receiving the request, they “conducted a
manual search for physical files and an electronic search for records” on computer hard drives
and email folders. Declaration of Lynnea Schurkamp ¶¶ 26–27, ECF No. 12-3 (“Schurkamp
Decl.”). The search identified 537 pages of potentially responsive records, of which Defendants
produced 389 pages, subject to withholdings pursuant to FOIA Exemptions (b)(3), (b)(5), (b)(6),
(b)(7)(C), and (b)(7)(E).” Id. ¶¶ 28, 30; see also Vaughn Index, ECF No. 12-4. In moving for
summary judgment, Defendants contend that their search was adequate, that they properly
invoked FOIA exemptions for withholding certain responsive records, and that they complied
with FOIA’s segregability requirement. See Memo. in Support of Defs.’ Mot. for Summary
Judgment, ECF No. 12-2.
II. LEGAL STANDARD
In FOIA litigation, as in all civil cases, summary judgment is appropriate only when the
pleadings and declarations demonstrate that there is no genuine issue of material fact, and the
moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “FOIA provides a ‘statutory right of public
access to documents and records’ held by federal government agencies.” Citizens for Resp. &
Ethics in Wash. v. U.S. Dep’t of Justice, 602 F. Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt
v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982)). The Act requires federal agencies to comply
with requests to make their records available to the public unless such “information is exempted
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under [one of nine] clearly delineated statutory [exemptions].” Id. (internal quotation marks
omitted); see also 5 U.S.C. §§ 552(a)–(b).
In reviewing a motion for summary judgment under FOIA, the court must view the facts
in the light most favorable to the requester. See Weisberg v. U.S. Dep’t of Justice, 745 F.2d
1476, 1485 (D.C. Cir. 1984). Summary judgment in FOIA cases may be based solely on
information provided in an agency’s supporting affidavits or declarations if they are “relatively
detailed and nonconclusory.” SafeCard Servs., Inc. v. U.S. Sec. & Exch. Comm’n, 926 F.2d
1197, 1200 (D.C. Cir. 1991) (internal quotation and citation omitted). These declarations are
“accorded a presumption of good faith, which cannot be rebutted by purely speculative claims
about the existence and discoverability of other documents.” Id. (internal quotation and citation
omitted).
“To successfully challenge an agency’s showing that it complied with the FOIA, the
plaintiff must come forward with specific facts demonstrating that there is a genuine issue with
respect to whether the agency has improperly withheld . . . records.” Span v. U.S. Dep’t of
Justice, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (citing U.S. Dep’t of Justice v. Tax Analysts,
492 U.S. 136, 142 (1989)) (quotation marks omitted). By corollary, “[a] non-moving party’s
complete failure to come forward with evidence to demonstrate the existence of a genuine issue
of material fact constitutes a ‘reason’ for the grant of summary judgment under [Rule 56(e)].”
Smith v. U.S. Dep’t of Justice, 987 F. Supp. 2d 43, 47 (D.D.C. 2013).
III. ANALYSIS
Plaintiff does not dispute that Defendants’ search was adequate, but rather contends that
they wrongfully invoked FOIA’s exemptions and failed to segregate non-exempt information.
See Pl.’s Opp’n to Defs.’ Mot. for Summary Judgment, ECF No. 16 (“Opp’n to MSJ”). Both
contentions fail.
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A. Exemption 3
Exemption 3 covers records that another statute specifically prohibits disclosing. Id.Here, Defendants invoked the Federal Victims’ Protection & Rights Act, which prohibits
disclosure of “documents that disclose the name or any other information concerning a child,” 18
U.S.C. § 3509(d), and therefore “qualifies as an Exemption 3 withholding statute,” Rodriguez v.
U.S. Dep’t of Army, 31 F. Supp. 3d 218, 237 (D.D.C. 2014). Defendants aver that the records
withheld under Exemption 3 “contain[] sensitive information pertaining to child victims involved
in criminal proceedings” that “could potentially be used, in combination with other released
information, to identify the child victims.” Schurkamp Decl. ¶ 34; see also, e.g., Vaughn Index
at 1–2. Plaintiff presents no facts to disturb that conclusion, arguing only that he did “not request
any information involving the name or other information concerning a child.” Opp’n to MSJ at
7. But Defendants’ declaration establishes that some of their records related to his child
pornography conviction—and therefore within the scope of his request—included statutorily
protected information about children, regardless of whether Defendant specifically requested that
information. That is sufficient to withhold those records.
B. Exemption 5
Defendants also properly invoked the deliberative process privilege under FOIA’s
Exemption 5 to withhold “internal communications related to the investigation, case planning,
and surveillance of Mr. Vaskas.” Schurkamp Decl. ¶ 36. The privilege “protects agency
documents that are both predecisional and deliberative,” Judicial Watch, Inc. v. Food & Drug
Admin., 449 F.3d 141, 151 (D.C. Cir. 2006), to promote “open and frank discussion among”
government decisionmakers, U.S. Dep’t of Interior v. Klamath Water Users Protective Ass’n,
532 U.S. 1, 9 (2001). “[A] decision as to whether or not to prosecute someone,” along with “the
information-gathering and deliberative process that produces the decision is precisely the type of
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material to be protected as pre-decisional under Exemption 5.” Paisley v. Cent. Intelligence
Agency, 712 F.2d 686, 699 (D.C. Cir. 1983), opinion vacated in part, 724 F.2d 201 (D.C. Cir.
1984) (unrelated to Exemption 5 holding). Plaintiff objects that “some records cannot qualify as
intra-or-inter-agency memoranda” and suggests that they may be “communications with a
nonagency third party.” Opp’n to MSJ at 8. But he does not cite any evidence to support either
assertion, and so his “purely speculative claims” do not rebut the presumption of good faith and
accurate descriptions afforded to Defendants’ declaration. SafeCard Servs., Inc., 926 F.2d at
1200. There is accordingly no dispute of material fact with respect to Exemption 5.
C. Exemptions 6 and 7(C)
There is likewise no basis for disputing that Defendants lawfully withheld records under
FOIA Exemptions 6 and 7(C). Those exemptions protect information from “personnel and
medical files and similar files the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy,” 5 U.S.C. § 552(b)(6), and information “compiled for law
enforcement purposes” if a release of the records or information “could reasonably be expected
to constitute an unwarranted invasion of personal privacy,” id. § 552(b)(7)(C). Defendants’
declaration states that they applied these exemptions to withhold two categories of information:
(1) “the names, identification codes, code names, phone numbers, and signatures of federal law
enforcement officers and other government employees”; and (2) the “personally identifiable
information [“PII”] of third parties, to include names, case numbers, social security numbers,
alien numbers, addresses, e-mail addresses, phone numbers, VIN numbers, seizure numbers,
dates of birth, Subject ID numbers, and Event numbers within ICE’s documents.” Schurkamp
Decl. ¶ 43.
Exemptions 6 and 7(C) cover both categories of withheld records. Under Exemption
7(C), the information was compiled for law enforcement purposes because it consists either of
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records regarding law enforcement officers themselves or records compiled by ICE in the course
of carrying out its enforcement of U.S. immigration laws. See Thomas v. U.S. Dep’t of Justice,
531 F. Supp. 2d 102, 107 (D.D.C. 2008) (records pertaining to investigation and prosecution
were compiled for law enforcement purposes). And that information could constitute an
unwarranted invasion of personal privacy. Law enforcement officers and third parties alike
could become targets for harassment, embarrassment, annoyance, or identity theft were their PII
publicly disclosed. See Schurkamp Decl. ¶¶ 44–46. By contrast, Plaintiff has identified no
public interest that would outweigh those privacy invasions, much less a “significant” one. Boyd
v. U.S. Dep’t of Justice, 475 F.3d 381, 387 (D.C. Cir. 2007) (citing Nat’l Archives & Recs.
Admin. v. Favish, 541 U.S. 157, 172 (2004)). “[S]omething outweighs nothing every time.”
Fitzgibbon v. Cent. Intelligence Agency, 911 F.2d 755, 768 (D.C. Cir. 1990) (formatting
modified).
The Exemption 6 analysis is similarly straightforward. Its reference to “personnel and
medical files and similar files” is interpreted broadly, covering all “Government records on an
individual which can be identified as applying to that individual.” U.S. Dep’t of State v.
Washington Post Co., 456 U.S. 595, 602 (1982). And for the reasons already explained, the
balance of privacy considerations and the public interest tips in favor of nondisclosure. Indeed,
Defendants’ declaration explains that they deliberately carried out that balancing before deciding
to withhold some of the requested records. Schurkamp Decl. ¶¶ 44–46, 48–49. Lacking any
evidence that Defendants acted in bad faith, or that the public and private interests at issue are
otherwise in dispute, the court concludes that Defendants properly invoked Exemption 6.
Plaintiff’s counterarguments are unavailing. First, he argues that the “identity and
involvement” of three DHS Special Agents has already been disclosed, so their information is no
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longer exempt. Opp’n to MSJ at 8. But he cites no evidence that their information is in the
public domain, and in any event, disclosure “elsewhere [does not] cause[] [one’s] substantial
privacy interests under exemption 7(C) to be diminished.” Fitzgibbon, 911 F.2d at 768; see also
U.S. Dep’t of Just. v. Reps. Comm. For Freedom of Press, 489 U.S. 749, 762–65 (1989)
(rejecting the “cramped notion of personal privacy” that an individual has no privacy interest in
information “previously disclosed to the public”). Second, Plaintiff repeats his assertion that he
did not request any PII. Again, however, that assertion ignores the fact that some records
otherwise responsive to his request might incidentally contain PII and therefore still need to be
withheld—at least in part—on that basis. See supra Section III.A; see also, e.g., Vaughn Index
at 1–3 (withholding document in part because it contains law enforcement PII). As a result, there
is no dispute of material fact that Defendants lawfully relied on Exemptions 6 and 7(c) to
withhold records containing PII.
D. Segregability
Finally, Defendants also complied with their statutory duty to release “[a]ny reasonably
segregable portion” of the requested records. 5 U.S.C. § 552(b). Under FOIA, they bear the
burden of demonstrating “with reasonable specificity” that the withheld records cannot be further
segregated. Armstrong v. Exec. Office of the President, 97 F.3d 575, 578-79 (D.C. Cir. 1996).
Here, Defendants aver that they “reviewed each record line-by-line to identify information
exempt from disclosure or for which a discretionary waiver of an exemption could be applied,”
Schurkamp Decl. ¶ 57, and their Vaughn Index reflects that particularized review, see ECF No.
12-4. They are entitled to the “presumption that they complied with the obligation to disclose
reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C.
Cir. 2007). Plaintiff has not produced a “quantum of evidence” to “overcome that presumption,”
id., and therefore cannot withstand summary judgment.
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IV. CONCLUSION
For these reasons, the court will GRANT Defendants’ Motion for Summary Judgment,
ECF No. 12. A corresponding Order will accompany this Memorandum Opinion.
Date: August 2, 2023
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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