Bal v. U.S. Department of the Treasury

Opinion

SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------x JOHN BAL, : : Plaintiff, : 21-CV-4702 (OTW) : -against- : OPINION & ORDER : U.S. DEPARTMENT OF THE TREASURY, et al., : Defendants. : : : -------------------------------------------------------------x ONA T. WANG, United States Magistrate Judge: Before the Court, on consent, are the parties’ cross motions for summary judgment. This case concerns whether Defendants unreasonably redacted certain information in a 3-page report that was located and produced by Defendants in response to pro se Plaintiff John Bal’s (“Plaintiff” or “Bal”) Freedom of Information Act (“FOIA”) request. After reviewing the Defendants’ motion for summary judgment and the papers filed by Plaintiff (which he stated were filed as both his opposition to Defendants’ motion for summary judgment and in support of his own cross motion for summary judgment), I conclude that no genuine issue of fact exists, Defendants’ motion for summary judgment is GRANTED, and Plaintiff’s cross-motion for summary judgment is DENIED. I. BACKGROUND1 In 2018, Plaintiff sought to rent an apartment in Cuba from non-party Danays Drake and attempted to send $400 to Drake via PayPal. (First Amended Complaint, ECF 12 ¶¶ 1, 3) (hereafter

1 Because neither party filed a Rule 56.1 Statement of Undisputed Facts, cita�ons are to Defendants’ Declara�on of Marshall H. Fields, Jr. filed in support of Defendants’ mo�on to dismiss, which is incorporated by reference in Defendants’ Declara�on of Sean W. Haynes filed in support of Defendants’ mo�on for summary judgment, and the First Amended Complaint. (See ECF 56, 99). As detailed below, Rule 56.1 Statements are not required in FOIA ac�ons in this district. See Haitian Bridge During this time, Bal was informed that PayPal had “misrepresented” to the U.S. Department of Treasury (“USDOT”), the Office of Foreign Assets Control (“OFAC”) that his contract with Drake violated OFAC regulations. (Id. ¶ 11). In 2020, Bal filed a FOIA request for documentation concerning the blocked payment. (ECF 56 ¶ 9). By the time Bal filed his First Amended Complaint on September 30, 2021, Bal’s funds had been released by PayPal (minus a $6 fee, which was later reimbursed), (First Am. Compl. ¶ 23).

II. PROCEDURAL HISTORY The parties consented to my jurisdiction on February 15, 2023. (ECF 60) On October 5, 2023, I dismissed all the claims in Plaintiff’s First Amended Complaint except for a portion of Claim IV, Plaintiff’s FOIA claim where he alleges that OFAC unreasonably redacted the 3-page document that it produced in response to Plaintiff’s FOIA request. (ECF 67).2 On December 6, 2023, the Defendants indicated that they intended to move for summary

judgment to resolve Plaintiff’s challenge to the redaction. (ECF 75). On March 10, 2024, Defendants proposed a briefing schedule for cross-motions for summary judgment, (ECF 81), which I adopted on March 13, 2024.3 (ECF 82). After several extensions of the briefing schedule, the parties’ cross-motions were filed as follows: Defendants filed their cross-motion for summary judgment and accompanying

Fed. Bureau Invest., 21-CV-10888 (NRB), 2023 WL 5955843, at *1 n. 1 (S.D.N.Y. Sept. 13, 2023). Further, Plain�ff has not contested the facts as proffered by Defendants’ declara�ons in any of his filings. (See ECF Nos. 131, 132, 133, 136, 152). 2 Plain�ff has filed two mo�ons for reconsidera�on related to the Opinion and Order at ECF 67 and a scheduling order se�ng briefing schedules for Plain�ff’s mo�on for reconsidera�on of ECF 67 and the par�es’ proposed cross-mo�ons for summary judgment and ruling on two of Plain�ff’s leter mo�ons. (ECF 82). The mo�ons for reconsidera�on are located at ECF 83 and ECF 101. 3 On December 6, 2023, I directed both par�es to submit joint proposed briefing schedule for cross-mo�ons for summary judgment. (ECF 76). Plain�ff’s subsequent leters did not propose a briefing schedule. (ECF 78, 81). 2 Litigant Who Opposes a Motion for Summary Judgment” (ECF 100); Plaintiff filed his cross-motion(s) for summary judgment and accompanying memorandum of law on September 22, 2024, (ECF 131, 132, 133). Days later, Plaintiff filed a “reply” memorandum of law in support of his cross motion for summary judgment on September 30, 2024, (ECF 136), even though Defendants had not yet filed their opposition. Plaintiff subsequently confirmed on October 29, 2024, that his original cross-motion for summary judgment was intended to serve as his opposition to Defendants’ cross-motion. (ECF 140).

Defendants filed their memorandum of law in opposition to Plaintiff’s cross-motion on November 1, 2024. (ECF 147). Plaintiff then, however, filed a letter on November 8, 2024, claiming it was “premature for the plaintiff to file an opposition to the defendants’ motion,” seemingly requesting a stay or an extension of the briefing schedule. (ECF 148). This request was denied on November 8, 2024. (ECF 149). On November 22, 2024, Plaintiff was given one final extension, to December 6, 2024, to address arguments in Defendants’ opposition brief. (ECF 150). Also on November 22, 2024, Defendants

filed their reply in support of their cross motion for summary judgment, and Plaintiff filed another reply in support of his cross motion.4 (ECF 151, 152). On December 6, 2024, Plaintiff filed a “Motion for Reconsideration” (ECF 153) that seeks reconsideration of my prior order at ECF 150, and does not respond to arguments made in Defendants’ Motion for Summary Judgment. Plaintiff’s FOIA request, which sought documents that (1) were transmitted to OFAC from

PayPal or any other entity and were related to the blocking of Plaintiff’s funds and (2) contain OFAC investigatory results or findings that resulted in the blocking of Plaintiff’s funds, is filed at ECF 56-1.

4 As noted above, Plain�ff previously filed a reply in support of his cross mo�on on September 30, 2024, before Defendants had filed their opposi�on. (ECF 136). 3 at ECF 99-1. III. DISCUSSION A. Legal Standard Under FOIA, “each [federal] agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules …, shall make the records promptly

available to any person.” 5 U.S.C. § 552(a)(3)(A). Given the rarity of factual disputes in FOIA cases, summary judgment under Rule 56(a) of the Federal Rules of Civil Procedure is the most common procedural vehicle by which FOIA cases are resolved. See Det. Watch Network v. U.S. Immigr. & Customs Enf’t, 215 F. Supp. 3d 256, 261 (S.D.N.Y. 2016) (ci�ng Carney v. U.S. Dep’t of Just., 19 F.3d 807, 812 (2d Cir. 1994)); Reclaim the Records v. U.S. Dep’t State, 23-CV-1529 (VEC), 2024 WL 3938296, at *3 (S.D.N.Y. Aug. 26, 2024).

The pending cross-mo�ons are brought pursuant to Rule 56(a). Summary judgment is appropriate when the “movant shows that there is no genuine dispute as to any material fact and the movant is en�tled to judgment as a mater of law.” Fed. R. Civ. P. 56(a). The moving party must demonstrate the absence of a material issue of fact and the Court must find that “a�er drawing all reasonable inferences in favor of a non-movant, no reasonable trier of fact could find in favor of that

5 “In Vaughn v. Rosen, the District of Columbia Circuit ... conceived of the document now known as the Vaughn affidavit as a means of overcoming the ins�tu�onal difficul�es inherent in FOIA li�ga�on.” Halpern v. F.B.I., 181 F.3d 279, 290 (2d Cir. 1999) (ci�ng Vaughn v. Rosen, 484 F.2d 820, 824 (D.C. Cir. 1973)). The Second Circuit has adopted a “func�onal approach” to the Vaughn affidavit/index. Id. at 291; see also N.Y. Times Co. v. Dep't of Just., 758 F.3d 436, 438–39 (2d Cir. 2014) (“Once a FOIA request has been made for documents, the prepara�on of a Vaughn index is now an accepted method for the [g]overnment to iden�fy responsive documents and discharge its obliga�on to assert any claimed FOIA exemp�ons to the various documents withheld.” (footnote omited) (ci�ng cases)), supplemented, 762 F.3d 233 (2d Cir. 2014). 4 Inc., 769 F. Supp. 2d 520, 523 (S.D.N.Y. 2011). “In order to prevail on a mo�on for summary judgment in a FOIA case, the defending agency has the burden of showing [1] that its search was adequate and [2] that any withheld documents fall within an exemp�on to the FOIA.” Carney v. U.S. Dep’t of Just., 19 F.3d 807, 812 (2d Cir. 1994) (ci�ng 5 U.S.C. § 552(a)(4)(B)). Affidavits or declara�ons providing “reasonably detailed explana�ons why any withheld documents fall within an exemp�on are sufficient to sustain the agency’s burden” and are

“accorded a presump�on of good faith.” Carney, 19 F.3d 807 at 812; Project South v. U.S. Immig. & Customs Enf’t, 21-CV-8440 (ALC) (BCM), 2024 WL 1116164, at *4 (S.D.N.Y. Mar. 12, 2024). Agency affidavits alone may support a grant of summary judgment, as Local Civil Rule 56.1 statements are not required in FOIA ac�ons in this district. See Haitian Bridge Alliance v. U.S. Dep’t Homeland Sec., 22-CV- 8344 (ER), 2024 WL 476304, at *5 n. 13 (S.D.N.Y. Feb. 7, 2024); N.Y. Times Co. v. Fed. Bureau Invest., 21- CV-10888 (NRB), 2023 WL 5955843, at *1 n. 1 (S.D.N.Y. Sept. 13, 2023). “When an agency submits a

declara�on or affidavit in support of its conclusion that it does not possess responsive records, it is en�tled to a presump�on of good faith.” Reclaim the Records, 2024 WL 3938296 at *3 (internal quota�ons omited); Seife v. Food & Drug Admin., 492 F. Supp. 3d 269, 274 (S.D.N.Y. 2020). Summary judgment is not appropriate, however, where “the agency’s response raises serious doubts as to the completeness of the agency’s search, where the agency’s response is patently incomplete, or where the agency’s response is for some other reason unsa�sfactory.” NAACP Legal Def. & Educ. Fund, Inc. v. U.S.

Dep’t Just., 463 F. Supp. 3d 474, 483 (S.D.N.Y. 2020). “In sum, courts may award summary judgment on the basis of agency affidavits that (1) describe the jus�fica�ons for nondisclosure with reasonably specific detail, (2) demonstrate that the informa�on withheld logically falls within the claimed exemp�on, and (3) are not controverted by 5 1116164 at *4 (internal quota�ons omited). “Conversely, summary judgment in favor of the FOIA plain�ff is appropriate when an agency seeks to protect material which, even on the agency’s version of the facts, falls outside the proffered exemp�on.” Id. (internal quota�ons omited). The Second Circuit has held that “special solitude should be afforded pro se li�gants generally, when confronted with mo�ons for summary judgment.” Graham v. Lewinski, 848 F.2d 342, 344 (2d. Cir. 1988).

B. Defendants’ Response to Plain�ff’s FOIA Request To defend their search efforts, Defendants must only show that their search was adequate. Long v. Office of Personal Mgmt., 692 F.3d 185, 190 (2d Cir. 2012). “Adequacy requires the Government to demonstrate that its search was reasonably calculated to discover the requested documents.” Estate of Ghais Abduljaami v. U.S. Dep’t of State, 14-CV-7902 (RLE), 2016 WL 94140, at *3 (S.D.N.Y. Jan. 7, 2016)

(internal quota�ons omited). OFAC produced a single, 3-page document in response to Plain�ff’s FOIA request on November 5, 2021. (ECF 99 ¶ 10). As described in the Vaughn index, the document produced was a blocking report submited by PayPal to OFAC dated August 24, 2018, iden�fying the blocked transac�on from Plain�ff. (ECF 99 ¶ 12; ECF 99-1). The Vaughn index explains why certain informa�on was redacted from the blocking report pursuant to FOIA Exemp�ons (b)(4) and (b)(6). (See ECF 99-1). Defendants also provided Plain�ff with a Final Response leter, which explains the nature of

Defendants’ search. (ECF 56-9). This is sufficient to show that Defendants undertook an adequate search for documents responsive to Plain�ff’s request, and Plain�ff does not dispute the diligence of Defendants’ search. Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994).

6 summary judgment,6 the Court will review the evidence submited and decide Defendants’ mo�on on the merits. Id. at 812 (“In order to prevail on a mo�on for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate and that any withheld documents fall within an exemp�on to the FOIA.”). C. Applicability of Exemp�on 4

An agency’s affidavit in support of summary judgment that sufficiently demonstrates how redacted informa�on falls within the claimed exemp�on(s), absent a showing of “bad faith on the part of the agency sufficient to impugn the agency’s affidavits or declara�ons or … evidence that an exemp�on claimed by the agency should not apply,” is sufficient to carry the government’s burden. Jabar v. U.S. Dep’t of Justice, 62 F.4th 44, 52 (2d Cir. 2023); Knight First Amend. Inst. At Columbia Univ. v. U.S. Citizenship & Immigr. Servs., 30 F.4th 318, 327 (2d Cir. 2022).

Exemp�on 4 protects from disclosure “trade secrets and commercial or financial informa�on obtained from a person [that is] privileged or confiden�al.” 5 U.S.C. § 552(b)(4); (ECF 99 ¶ 11). “Exemp�on [4] applies if a tripar�te test is sa�sfied: (1) The informa�on for which exemp�on is sought

6 By filing a cross-mo�on for summary judgment in which Plain�ff advances only arguments for reinstatement of his previously dismissed claims (see ECF 132), Plain�ff has failed to respond to Defendant’s arguments concerning the redac�ons to the blocking report which, if he were counseled, could cons�tute an abandonment of the claim. See, e.g., Cui v. Fed. Bureau of Invest., 551 F. Supp. 3d 4, 16 (E.D.N.Y. 2021) (ci�ng Banyan v. Sikorski, 17-CV-4942, 2021 WL 2156226, at *2 (S.D.N.Y. May 27, 2021). Plain�ff explicitly iden�fied these filings as his “opposi�on” to Defendants’’ mo�on for summary judgment, notwithstanding being given mul�ple extensions and cau�ons to respond to the arguments in Defendants’ mo�on for summary judgment. (ECF 100, 113, 118, 125, 137, 140, 150). See Dynamic Concepts, Inc. v. Tri-State Surgical Supply & Equip. Ltd., 716 F. App’x 5, 14 (2d Cir. 2017) (holding that a par�al opposi�on to a mo�on for summary judgment that only references “some claims or defenses but not others” allowed an inference that the “claims or defenses that are not defended have been abandoned”). See also Ziming Shen v. City of New York, 725 F. App’x 7, 17 (2d Cir. 2018) (affirming the district court’s finding that the plain�ff abandoned claims that she did not address in her opposi�on to summary judgment). 7 and (3) it must be privileged or confiden�al.” Nadler v. FDIC, 92 F.3d 93, 95 (2d Cir. 1996). Defendant has iden�fied the informa�on redacted under Exemp�on 4 as specific details regarding the filer of the blocking report, transac�on ID informa�on, the funding source for the transac�on, and the words associated with the transac�on that caused it to be flagged by PayPal. (ECF 99-1). PayPal and OFAC keep this informa�on confiden�al in order to prevent others from future sanc�ons evasion. (Id.) Accordingly, the three-part test for Exemp�on 4 is sa�sfied.

D. Applicability of Exemp�on 6 Exemp�on 6 protects “personnel and medical files and similar files the disclosure of which would cons�tute a clearly unwarranted invasion of personal privacy,” and seeks to “protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal informa�on. 5 U.S.C § 552(b)(6); U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 599 (1982).

The Second Circuit employs a two-step inquiry to determine whether informa�on is properly withheld under Exemp�on 6: (1) is the informa�on “similar to a medical or personnel file,” and (2) would disclosure “compromise a substan�al, as opposed to a de minimis, privacy interest.” Am. Civil Liberties Union v. Dep’t of Justice, 563 F. Supp. 3d 183, 192 (S.D.N.Y. 2021). Informa�on is considered similar to a medical or personnel file where “it contains personal informa�on iden�fiable to a par�cular person.” Id. (ci�ng Cook v. Nat’l Archives & Records Admin., 758 F.3d 168, 175 (2d Cir. 2014)). Personal

informa�on (e.g., names, addresses) has been found to implicate a “private interest cognizable under the FOIA exemp�ons.” Id. (ci�ng Associated Press v. U.S. Dep’t of Justice, 549 F.3d 62, 65 (2d Cir. 2008)). If a privacy interest exists, courts must weigh the privacy interest against the public interest, but only to the extent that the public interest is relevant to “the extent to which disclosure would serve the core

8 ac�vi�es of the government.” Id. (ci�ng Associated Press, 549 F.3d at 66). The only informa�on purported to be redacted is personally iden�fiable informa�on (“PII”) of PayPal’s employee(s) who were involved in submi�ng the blocking report, including names and a telephone number. (ECF 99 ¶¶ 19-22; ECF 99-1). Such informa�on is regularly kept confiden�al, and disclosing these employees’ PII could expose them to unnecessary harassment and/or harm. This is precisely the type of informa�on that falls within the ambit of Exemp�on 6 under the first prong of the

inquiry. Second, there is no relevant public interest that outweighs the privacy interest at stake. Plain�ff has failed to demonstrate or argue at all how the PII of PayPal’s employee(s) will contribute to the public understanding of the opera�ons or ac�vi�es of the government. This informa�on explicitly pertains to private employees. Furthermore, there are serious privacy risks for the PayPal employee(s). Plain�ff has repeatedly sought my recusal a�er an unfavorable decision on Defendants’ mo�on to

dismiss, and sought mandamus a�er that recusal was denied. (See ECF 102, 106, 123, 129, 141). He has also sought civil contempt against Defendants and sought to add their counsel as a defendant for arguments made in the mo�on to dismiss and for failing to respond to an email. (See ECF 78, 114). Iden�fica�on of the PayPal employee(s) who submited the blocking report to OFAC in the first place would serve no purpose in adjudica�ng this FOIA claim and would cons�tute a clearly unwarranted

invasion of personal privacy, and poten�ally subject the PayPal employee(s) to unnecessary li�ga�on. Further, by failing to contest that the redacted informa�on contains personnel and/or medical files, Plain�ff has “waived any argument with respect to whether these records are of the type that are subject to Exemp�on 6.” Austin Sanctuary Network v. U.S. Immigr. & Customs Enfc’t, 20-CV-1686 (LJL), 2022 WL 4356732, at *29. (S.D.N.Y. Sept. 19, 2022). Plain�ff iden�fied his mo�on for summary judgment, found at ECF 131, 132, and 133, to also cons�tute his opposi�on to Defendants’ mo�on for summary judgment. (ECF 140 at 2). Plain�ff’s argument on Count IV states, in its en�rety: “It is undisputed that defendants OFAC and Marshall Fields repeatedly violated [FOIA] . . . regarding Bal’s May 15, 2020, FOIA request. (FAC ECF 12 at pg. 11-12).” (ECF 132 at 3). Plain�ff’s “reply,” filed before Defendants’ opposi�on,7 adds only that PayPal’s failure to

file anything on the docket a�er its dismissal means that “PayPal has not objected to the plain�ff’s receiving the documents it submited to OFAC.” (ECF 136 at 2). Plain�ff has provided no evidence to suggest that Defendants’ redac�ons were improper or made with bad faith sufficient to “impugn the agency’s affidavits or otherwise warrant denial of summary judgment.” See Smith v. U.S. Marshals Serv., 19-CV-3572, 2021 WL 1177692, at *5 (S.D.N.Y. Mar. 29, 2021). F. Plain�ff’s Mo�ons for Reconsidera�on and For Summary Judgment Are Denied

Plain�ff sought an extension of �me and/or leave to file his mo�on for reconsidera�on, and apparently misconstrues the Court’s Order at ECF 82 se�ng the briefing schedule as an order “gran�ng reconsidera�on” of ECF 67, the opinion and order dismissing the majority of Plain�ff’s claims. (ECF 101). At the same �me, Plain�ff did �mely file his mo�on for reconsidera�on (of ECF 67) at ECF 101. The reconsidera�on mo�on rehashes arguments about: (1) the default of the individual Defendants, (2) Defendants’ counsel failing to respond to Plain�ff’s email, providing legal advice to

Plain�ff, or telling Plain�ff he needed to seek legal advice; (3) causing the Court to (mis)construe his

7 Plain�ff was given another extension, to December 6, 2024, to file any reply to Defendants’ opposi�on. He has not done so. Instead, on December 6, 2024 Plain�ff filed a mo�on for reconsidera�on of my November 22, 2024, order that addressed the mul�ple mo�ons Plain�ff has asserted (and s�ll does) are pending. (ECF 153). As explained in ECF 150, the mo�ons Plain�ff refers to in ECF 153 as pending and undecided have been decided, are closed, and do not prevent the Court from deciding the par�es’ cross mo�ons for summary judgment. Plain�ff’s mo�on does not contain any argument in reply to Defendant’s opposi�on. 10 findings of civil contempt and default. (ECF 101). Plain�ff has not iden�fied any facts—or any controlling law—that would compel a different result. Indeed, the Court has addressed several of these issues when ruling on Plain�ff’s mul�ple other mo�ons. (See, e.g. ECF 82, 150) (referring to non- exhaus�ve list of other mo�ons and prior rulings). Accordingly, Plain�ff’s mo�on for summary judgment and mo�on for reconsidera�on are DENIED.

IV. CONCLUSION For the foregoing reasons, the Defendants’ cross-mo�on for summary judgment is GRANTED and Plain�ff’s cross-mo�on for summary judgment is DENIED. The Clerk of Court is respec�ully directed to enter judgment for Defendants, close the case, and close all open mo�ons in the case.

SO ORDERED.

s/ Ona T. Wang Dated: December 9, 2024 Ona T. Wang New York, New York United States Magistrate Judge