UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC. ) ) Plaintiff, ) ) v. ) ) Civil Case No. 07-506 (RJL) U.S. DEPARTMENT OF ) HOMELAND SECURITY, et ale ) ) Defendants. )
MEMORANDUM OPINION (February 1.-~, 2009) [#24,30]
Plaintiff Judicial Watch, Inc. filed this Freedom of Information Act ("FOIA") lawsuit,
requesting documents pertaining to the prosecution of two border patrol agents convicted of
shooting accused drug-smuggler Osbaldo Aldrete-Davila ("Davila"). Plaintiff and defendant
U.S. Department of Justice ("DOJ") filed cross-motions for summary judgment. Because
plaintiff is seeking information that sheds light on DO]' s performance of its duties, information
that "falls squarely within [FOIA' s] statutory purpose," Dep 't of Justice v. Reporter's Comm.
for Freedom of the Press, 489 U.S. 749, 773 (1989), defendant's motion for summary
judgment is DENIED, and plaintiffs motion for partial summary judgment is GRANTED.
The Court finds that defendant must search for and produce all non-exempt responsive
documents and compile a Vaughn index for exempt records.
BACKGROUND
On January 24, 2007, Judicial Watch submitted a FOIA request to the defendant
agencies seeking certain records concerning Davila, a Mexican national who testified for the Government in the prosecution of two border patrol agents. Compl. ~~ 7-9. Although the
defendant agencies were required to respond to this FOIA request within twenty days, 5 U.S.C.
§ 552(a)(6)(A)(i), they failed to produce any responsive records within that time frame.
Compl. ~~ 10-12. Accordingly, on March 16,2007, Judicial Watch brought suit in this Court
seeking to compel the defendant agencies to produce the records requested and to pay all
attorney's fees and costs. Compl. at 5-6.
On June 15,2007, the Executive Office for United States Attorneys ("EOUSA"), a
component ofDOJ, informed plaintiff that it was withholding records pursuant to FOIA
Exemptions 6 and 7(C). Def. Statement of Mat. Facts, ~ 11. The EOUSA had identified
potentially responsive records, but, believing the records to be "clearly exempt," did not
conduct a document-by-document search. Def. Statement of Mat. Facts, ~~ 13-14, 16.
Plaintiff filed the motion for partial summary judgment as to defendant DOJ on November 9,
2007, asking this Court to order DOJ to search for and produce all non-exempt responsive
records and to create a Vaughn index of all exempt records. Defendant DOJ filed a cross-
motion for summary judgment on March 21, 2008, asserting that it can withhold the
documents under FOIA Exemptions 6 and 7(C).
LEGAL STANDARD
When assessing a motion for summary judgment under FOIA, the Court shall determine
the matter de novo. 5 U.S.C. § 552(a)(4)(B). De novo review of an agency decision "requires
the Court to 'ascertain whether the agency has sustained its burden of demonstrating that the
documents requested ... are exempt from disclosure under the FOIA. '" Assassination Archives
& Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003) (quoting
2 Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998)). Summary judgment is
proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(c). In rendering its decision, a court will
draw "all justifiable inferences" in the non-movant's favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242,255 (1986).
ANALYSIS
FOIA embraces a general philosophy of full disclosure of Government records, unless
information is specifically exempted by the Act itself. Oglesby v. Dep't ofArmy, 79 F 3d
1172,1176 (D.C. Cir. 1996); Vaughn v. Rosen, 484 F.2d 820,823 (D.C. Cir. 1973).
Exemptions from disclosure "must be construed narrowly, in such a way as to provide the
maximum access consonant with the overall purpose of the Act." Vaughn, 484 F.2d at 823.
Defendant claims that any records responsive to plaintiff s request would be exempt
under FOIA Exemptions 6 and 7(C). Exemption 6 protects against disclosure of "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). Exemption 7(C) allows
agencies to withhold law enforcement records that "could reasonably be expected to constitute
an unwarranted invasion of personal privacy[.]" 5 U.S.C. § 552(b)(7)(C). To determine
whether an agency has properly invoked these exemptions, a court must balance the weight of
the privacy interest against the public's interest in disclosure, keeping in mind FOIA's "basic
policy of opening agency action to the light of public scrutiny." Long v. Dep't ofJustice, 450
3 F. Supp. 2d 42,62 (D.D.C. 2006) (quoting Nat'{ Ass 'n o/Home Builders v. Norton, 309 F.3d
26,32 (D.C. Cir. 2002)).1
In this case, defendant seeks to do more than simply withhold individual records. DO]
argues that because any responsive records would be "clearly exempt from disclosure pursuant
to Exemptions 6 and 7(C)," it need not conduct a document-by-document review. Def. Mot. at
3. An agency can properly assert this kind of categorical exemption when the privacy interest
in a group of documents typically outweighs the public interest in their release. Nation
Magazine v. Us. Customs Svc., 71 F.3d 885,893 (D.C. Cir. 1995) ("Only when the range of
circumstances included in the category 'characteristically support[s] an inference' that the
statutory requirements for exemption are satisfied is such a rule appropriate.") (citation
omitted). Defendant argues that any law enforcement record mentioning Davila meets this
criterion.
This argument fails because "the mere fact that records pertain to an individual's
activities does not necessarily qualify them for exemption." Id. at 894-95. Where, as here, the
requested records could shed light on agency action - information that falls "squarely within
[FOIA's] statutory purpose," Reporter's Comm., 489 U.S. at 773 - an agency must, for each
record, conduct a particularized assessment of the public and private interests at stake.
In Reporter's Comm., the Supreme Court found that some law enforcement records
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC. ) ) Plaintiff, ) ) v. ) ) Civil Case No. 07-506 (RJL) U.S. DEPARTMENT OF ) HOMELAND SECURITY, et ale ) ) Defendants. )
MEMORANDUM OPINION (February 1.-~, 2009) [#24,30]
Plaintiff Judicial Watch, Inc. filed this Freedom of Information Act ("FOIA") lawsuit,
requesting documents pertaining to the prosecution of two border patrol agents convicted of
shooting accused drug-smuggler Osbaldo Aldrete-Davila ("Davila"). Plaintiff and defendant
U.S. Department of Justice ("DOJ") filed cross-motions for summary judgment. Because
plaintiff is seeking information that sheds light on DO]' s performance of its duties, information
that "falls squarely within [FOIA' s] statutory purpose," Dep 't of Justice v. Reporter's Comm.
for Freedom of the Press, 489 U.S. 749, 773 (1989), defendant's motion for summary
judgment is DENIED, and plaintiffs motion for partial summary judgment is GRANTED.
The Court finds that defendant must search for and produce all non-exempt responsive
documents and compile a Vaughn index for exempt records.
BACKGROUND
On January 24, 2007, Judicial Watch submitted a FOIA request to the defendant
agencies seeking certain records concerning Davila, a Mexican national who testified for the Government in the prosecution of two border patrol agents. Compl. ~~ 7-9. Although the
defendant agencies were required to respond to this FOIA request within twenty days, 5 U.S.C.
§ 552(a)(6)(A)(i), they failed to produce any responsive records within that time frame.
Compl. ~~ 10-12. Accordingly, on March 16,2007, Judicial Watch brought suit in this Court
seeking to compel the defendant agencies to produce the records requested and to pay all
attorney's fees and costs. Compl. at 5-6.
On June 15,2007, the Executive Office for United States Attorneys ("EOUSA"), a
component ofDOJ, informed plaintiff that it was withholding records pursuant to FOIA
Exemptions 6 and 7(C). Def. Statement of Mat. Facts, ~ 11. The EOUSA had identified
potentially responsive records, but, believing the records to be "clearly exempt," did not
conduct a document-by-document search. Def. Statement of Mat. Facts, ~~ 13-14, 16.
Plaintiff filed the motion for partial summary judgment as to defendant DOJ on November 9,
2007, asking this Court to order DOJ to search for and produce all non-exempt responsive
records and to create a Vaughn index of all exempt records. Defendant DOJ filed a cross-
motion for summary judgment on March 21, 2008, asserting that it can withhold the
documents under FOIA Exemptions 6 and 7(C).
LEGAL STANDARD
When assessing a motion for summary judgment under FOIA, the Court shall determine
the matter de novo. 5 U.S.C. § 552(a)(4)(B). De novo review of an agency decision "requires
the Court to 'ascertain whether the agency has sustained its burden of demonstrating that the
documents requested ... are exempt from disclosure under the FOIA. '" Assassination Archives
& Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003) (quoting
2 Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998)). Summary judgment is
proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(c). In rendering its decision, a court will
draw "all justifiable inferences" in the non-movant's favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242,255 (1986).
ANALYSIS
FOIA embraces a general philosophy of full disclosure of Government records, unless
information is specifically exempted by the Act itself. Oglesby v. Dep't ofArmy, 79 F 3d
1172,1176 (D.C. Cir. 1996); Vaughn v. Rosen, 484 F.2d 820,823 (D.C. Cir. 1973).
Exemptions from disclosure "must be construed narrowly, in such a way as to provide the
maximum access consonant with the overall purpose of the Act." Vaughn, 484 F.2d at 823.
Defendant claims that any records responsive to plaintiff s request would be exempt
under FOIA Exemptions 6 and 7(C). Exemption 6 protects against disclosure of "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). Exemption 7(C) allows
agencies to withhold law enforcement records that "could reasonably be expected to constitute
an unwarranted invasion of personal privacy[.]" 5 U.S.C. § 552(b)(7)(C). To determine
whether an agency has properly invoked these exemptions, a court must balance the weight of
the privacy interest against the public's interest in disclosure, keeping in mind FOIA's "basic
policy of opening agency action to the light of public scrutiny." Long v. Dep't ofJustice, 450
3 F. Supp. 2d 42,62 (D.D.C. 2006) (quoting Nat'{ Ass 'n o/Home Builders v. Norton, 309 F.3d
26,32 (D.C. Cir. 2002)).1
In this case, defendant seeks to do more than simply withhold individual records. DO]
argues that because any responsive records would be "clearly exempt from disclosure pursuant
to Exemptions 6 and 7(C)," it need not conduct a document-by-document review. Def. Mot. at
3. An agency can properly assert this kind of categorical exemption when the privacy interest
in a group of documents typically outweighs the public interest in their release. Nation
Magazine v. Us. Customs Svc., 71 F.3d 885,893 (D.C. Cir. 1995) ("Only when the range of
circumstances included in the category 'characteristically support[s] an inference' that the
statutory requirements for exemption are satisfied is such a rule appropriate.") (citation
omitted). Defendant argues that any law enforcement record mentioning Davila meets this
criterion.
This argument fails because "the mere fact that records pertain to an individual's
activities does not necessarily qualify them for exemption." Id. at 894-95. Where, as here, the
requested records could shed light on agency action - information that falls "squarely within
[FOIA's] statutory purpose," Reporter's Comm., 489 U.S. at 773 - an agency must, for each
record, conduct a particularized assessment of the public and private interests at stake.
In Reporter's Comm., the Supreme Court found that some law enforcement records
were so imbued with a privacy interest, and so devoid of any public interest, that an agency
could validly assert Exemption 7(C) without conducting a search for responsive records. 489
U.S. at 776-80. The records at issue in that case were FBI rap sheets, i.e. compilations of an
I The privacy inquires under Exemptions 6 and 7(C) are "essentially the same." Judicial Watch, Inc. v. Dep't of Justice, 365 F.3d 1108, 1125 (D.C. Cir. 2004).
4 individual's criminal history from various law enforcement sources. Those records implicated
a "substantial" privacy interest, id. at 771, and, since they were compilations of information
included in various government files, revealed "little or nothing about an agency's own
conduct." Id. at 773.
The records requested here are quite different. Judicial Watch asks for four categories
of information: (1) communications between DOJ and the Government of Mexico, the
Department of State, or the Department of Homeland Security concerning Davila; (2) records
concerning the participation ofDOJ in coordinating, facilitating, or approving Davila's entries
into the United States; (3) information concerning grants of immunity to Davila; and (4)
records detailing the terms and conditions permitting Davila to lawfully enter the United
States. PI. Opp. at 3. The types of records responsive to such requests do not
"characteristically support[] an inference" that the statutory requirements for the exemption are
met. Nation Magazine, 71 F.3d at 893. Rather, these records could well be suffused, from top
to bottom, with information about DOl's performance of its duties. Unlike with rap sheets-
which are categorically exempt from disclosure because "the privacy interest protected by
Exemption 7(C) is in fact at its apex while the FOIA-based public interest in disclosure is at its
nadir[,]" Reporter's Comm., 489 U.S. at 780 - the balance between private and public interests
in the records requested here is a much closer call. Defendant therefore must conduct an
assessment of each responsive document to determine whether it is exempt.
Defendant's argument that Nat'l Archives and Records Admin. v. Favish, 541 U.S. 157
(2003), requires plaintiff to put forth evidence of government wrongdoing before defendant
must take the step of reviewing responsive documents is unavailing. The extra burden
5 established by Favish only applies when the requestor asserts government negligence or
improper conduct. 541 U.S. at 174. Judicial Watch makes no such assertion here. Rather,
plaintiff states that the information sought "will help answer questions surrounding DOl's
official activities," namely whether and/or how DOJ cooperated with other U.S. government
agencies or the government of Mexico in the prosecution of the border patrol agents, and
whether and/or how DOJ regularly offers immunity agreements to illegal drug smugglers to aid
in the prosecution of U.S. law enforcement officers. PI. Opp. at 16. In short, Judicial Watch
wants to know "what their government is up to." Reporter's Comm., 489 U.S. at 773 (citation
omitted). Such information, to say the least, goes to the very heart ofFOIA's purpose.
CONCLUSION
Thus, because the balance between the public and private interests in this case does not
characteristically tip in favor of non-disclosure, defendant's motion for summary judgment is
DENIED, and plaintiffs cross-motion for partial summary judgment is GRANTED. Both
parties may re-file summary judgment motions after defendant concludes its review of
responsive records. t
g~ United States District Judge