                           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




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