                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

                                             )
JUAN CARLOS OCASIO,                          )
                                             )
              Plaintiff,                     )
                                             )
      v.                                     )       Case No. 13-cv-0921 (TSC)
                                             )
U.S. DEPARTMENT OF JUSTICE,                  )
                                             )
              Defendant.                     )
                                             )

                                 MEMORANDUM OPINION

       In this case brought under the Freedom of Information Act (“FOIA”), the court

previously granted in part and denied in part Defendant U.S. Department of Justice’s (“DOJ”)

first motion for summary judgment against pro se Plaintiff Juan Carlos Ocasio. (ECF No. 24).

Before the court is Defendant’s second motion for summary judgment. (ECF No. 45). Upon

consideration of the motion, supplemental declaration, and Vaughn index, and Plaintiff’s

opposition, the court hereby GRANTS Defendant’s motion.

I.     BACKGROUND

       On June 11, 2012, Plaintiff filed a FOIA request with the DOJ Office of Inspector

General (“DOJ-OIG”). (ECF No. 4 at 3). The request sought several documents relating to the

investigation of a Federal Bureau of Investigation (“FBI”) complaint Plaintiff had filed in March

1994. (Id.; Compl. ¶¶ 5–6). In that complaint, Ocasio alleged that an individual—referenced

herein as “C.G.”—had illegally impersonated a federal officer and violated the Stolen Valor Act

by falsely claiming the receipt of military honors. (Compl. ¶¶ 5–9; ECF No. 10 at 2–5). On

November 19, 2012, DOJ-OIG denied the FOIA request, stating that the documents had been

destroyed, and DOJ-OIG subsequently denied Ocasio’s appeal on May 29, 2013, reaffirming that

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the documents had been destroyed and noting that had they not been, they would be categorically

exempt from disclosure under 5 U.S.C. § 552(b)(7)(C). (ECF No. 4 at 11, 17–18).

       After Plaintiff filed his Complaint in June 2013, a DOJ-OIG FOIA Officer again searched

for the requested files and found that they had not been destroyed, as had previously been

reported to Plaintiff. (Waller Decl. ¶ 10 (ECF No. 8-1); Waller Suppl. Decl. ¶ 4 (ECF No. 18-

2)). The FOIA officer reviewed all 296 pages of the responsive file and “determined that the

entire file constitute[d] law enforcement records of an individual that are exempt from disclosure

under FOIA exemption 7(C),” and that “[t]he exemption applie[d] to the entire file.” (Waller

Supp. Decl. ¶ 5).

       Defendant filed a motion to dismiss and/or for summary judgment in August 2013 (ECF

No. 8), which the court denied in part and granted in part in its September 2014 Opinion. (ECF

No. 22). The court found that DOJ had conducted an adequate search (id. at 11), that the

requested records are law enforcement records, and that C.G. has a privacy interest in

nondisclosure of the records (id. at 12–14). Moreover, the court held that while there is no

public interest under FOIA in identifying those who falsely claim military honors or who

impersonate officers, or in disclosing documents that may be used to cast doubt on the credibility

of witnesses in past federal proceedings, there is a public interest in knowing “what the

government is up to” (id. at 15–16). Specifically, the court held:

       There is therefore some public interest in “what the government is up to” in this
       case with respect to the substantive law enforcement policy DOJ employed in
       handling its investigation: how DOJ investigated an individual accused of
       making arrests under the guise of federal legal authority, and why DOJ failed to
       prosecute such an individual. Contrary to DOJ’s assertion, the investigation file
       might reveal something about the agency’s own conduct.

(Id. at 18). The court declined to rule on the strength of this asserted public interest,

stating that while it could not “conclude that there is no public interest in the disclosure of

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the records[,] . . . Ocasio may have not alleged enough to require disclosure[.]” (Id. at

17–18).

       Finally, the court denied summary judgment as to the adequacy of Defendant’s

balancing of the privacy interest and the public interest in disclosure. (Id. at 23). While

the court noted that it may be appropriate to apply Exemption 7(c) categorically—i.e., to

withhold the documents in their entirety because they are of a type such that the privacy

interest always outweighs the public interest in disclosure—the court determined that

Defendant did not sufficiently explain why applying this exemption categorically was

appropriate in this case. The court further found that, if Defendant did not apply the

exemption categorically, then it also failed to show through a Vaughn index whether it

appropriately determined, record-by-record, which documents should be withheld. The

court therefore ordered Defendant to produce a Vaughn index explaining the reasoning

for each withholding. (Id. at 23–24).

       Defendant filed its Vaughn index on November 14, 2014 (ECF No. 28), and

moved for summary judgment on October 14, 2015 (ECF No. 45). It also provided

Plaintiff with fifty-four pages of responsive documents, “all of which Plaintiff had

provided to the OIG” originally. (Waller Second Suppl. Decl. ¶ 3 (ECF No. 45-2)).

Defendant states that the “remaining documents within the investigative file are all

inextricably intertwined with [] witness statements, affidavits, and memoranda,” and

“redaction or segregation of these documents is [] not possible because even with

thorough redactions, a reader would be able to ascertain that each of these documents

concern the investigation of criminal charges against C.G.” (Id. at ¶¶ 6–7).




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II.    LEGAL STANDARD

       Summary judgment is appropriate where the record shows there is no genuine issue of

material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298

F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists,

the court must view all facts in the light most favorable to the non-moving party. See Adickes v.

S.H. Kress & Co., 398 U.S. 144, 157 (1970). A fact is material if “a dispute over it might affect

the outcome of a suit under governing law; factual disputes that are ‘irrelevant or unnecessary’

do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d 889, 895

(D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue

is genuine if “the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Id. (quoting Anderson, 477 U.S. at 248). The party seeking summary

judgment “bears the heavy burden of establishing that the merits of his case are so clear that

expedited action is justified.” Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294, 297 (D.C.

Cir. 1987).

       FOIA cases are “typically and appropriately” decided on motions for summary judgment.

Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 762 F. Supp.

2d 123, 130 (D.D.C. 2011). Upon an agency’s motion for summary judgment on the grounds

that it has fully discharged its FOIA obligations, all underlying facts and inferences are analyzed

in the light most favorable to the FOIA requester; only after an agency proves that it has fully

discharged its FOIA obligations is summary judgment appropriate. Moore v. Aspin, 916 F.

Supp. 32, 35 (D.D.C. 1996).




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       In cases concerning the applicability of exemptions, summary judgment may be based

solely on information provided in the agency’s supporting declarations. See, e.g., ACLU v. U.S.

Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011); Students Against Genocide v. Dep’t of State,

257 F.3d 828, 838 (D.C. Cir. 2001). “If an agency’s affidavit describes the justifications for

withholding the information with specific detail, demonstrates that the information withheld

logically falls within the claimed exemption, and is not contradicted by contrary evidence in the

record or by evidence of the agency’s bad faith, then summary judgment is warranted on the

basis of the affidavit alone.” ACLU, 628 F.3d at 619. “Ultimately, an agency’s justification for

invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Id. (internal

quotation marks omitted) (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)).

However, a motion for summary judgment should be granted in favor of the FOIA requester

where “an agency seeks to protect material which, even on the agency’s version of the facts, falls

outside the proffered exemption.” Coldiron v. U.S. Dep’t of Justice, 310 F. Supp. 2d 44, 48

(D.D.C. 2004) (internal quotation marks omitted) (quoting Petroleum Info. Corp. v. Dep’t of

Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992)).

III.   DISCUSSION

       In considering Defendant’s second motion for summary judgment, the court is again

tasked with assessing the applicability of the law enforcement FOIA exemption, 5 U.S.C.

§ 552(b)(7)(C) (“Exemption 7(C)”), to the facts of this case. Under this exemption, FOIA “does

not apply” to “records or information compiled for law enforcement purposes” to the extent that

their disclosure “could reasonably be expected to constitute an unwarranted invasion of personal

privacy.” 5 U.S.C. § 552(b)(7)(C). As noted above, the court previously held that the requested

files are law enforcement records, that C.G. has a privacy interest in nondisclosure, and that there



                                                 5
is at least a minimal public interest in disclosing how DOJ investigated the accused individual.

The court must now determine if Defendant properly balanced these private and public interests

when it withheld the responsive records.

       Under Exemption 7(C), the agency (and the court) must balance the privacy and public

interests to determine whether disclosure of the responsive records would result in an

“unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). If this balancing

“characteristically tips in one direction,” then the records may be categorically exempt from

disclosure. Citizens for Responsibility & Ethics in Wash. v. DOJ, 746 F.3d 1082, 1095 (D.C.

Cir. 2014) (“CREW”) (emphasis omitted). Such a categorical withholding of records is

appropriate when “a third party’s request for law enforcement records or information about a

private citizen” is balanced against a request that “seeks no ‘official information’ about a

Government agency, but merely records that the Government happens to be storing.” DOJ v.

Reporters Comm. for Freedom of Press, 489 U.S. 749, 780 (1989). Moreover, if the asserted

public interest “is to show that responsible officials acted negligently or otherwise improperly in

the performance of their duties, the requester must establish more than a bare suspicion in order

to obtain disclosure. Rather, the requester must produce evidence that would warrant a belief by

a reasonable person that the alleged Government impropriety might have occurred.” Nat’l

Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004).

       In its previous Opinion, the court held that “DOJ [did] not clearly explain into what

‘genus’ the disputed records fall such that they characteristically tip in favor of non-disclosure[,]

. . . [and] [t]he Court [could not] assess on the record before it whether DOJ actually engaged in

a balancing test to determine what portions of the file were exempt under 7(C).” (ECF No. 22 at

21). Defendant now argues that it has properly applied Exemption 7(C) to all of the responsive



                                                  6
documents because “it will ‘always [be] true that the damage to a private citizen’s privacy

interest’ from disclosure of any responsive document in the category ‘outweighs the FOIA-based

public value of such disclosure’” when the public interest is based on unsupported allegations of

impropriety. (Def. Br. at 12 (ECF No. 45-1) (quoting Reporters Comm., 489 U.S. at 779)).

After a careful review of the Waller Declaration and Plaintiff’s description of the public interest

here, the court agrees that in this case, Defendant has properly applied Exemption 7(C).

        As already determined, the target of the requested FBI investigation records, C.G., has a

strong privacy interest in nondisclosure of the records, which Plaintiff does not dispute. (ECF

No. 22 at 14); see also SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1205 (D.C. Cir. 1991)

(internal quotation marks omitted) (“There is little question that disclosing the identity of targets

of law-enforcement investigations can subject those identified to embarrassment and potentially

more serious reputational harm.”). Defendant’s position is that there is no possible way to

segregate the responsive records “because each page within the investigative report related to

Plaintiff’s unproven allegations of criminal conduct against C.G.” (Waller Second Supp. Decl. ¶

5).

        Plaintiff’s asserted public interest in disclosure stems from his allegation of “government

impropriety.” (ECF No. 52 at 7). While Plaintiff explains at length why he believes that C.G. is

guilty of several criminal offenses, it bears reiterating that the court’s role here is not to

determine the credibility or veracity of these allegations, or pass judgment on the appropriateness

of the decision to not prosecute C.G. Instead, the court must only evaluate whether the public

interest here may overcome C.G.’s privacy interest in order to require disclosure. As noted

above, Plaintiff was obligated to “produce evidence that would warrant a belief by a reasonable

person that the alleged Government impropriety might have occurred.” Boyd v. Crim. Div. of



                                                   7
DOJ, 475 F.3d 381, 387 (D.C. Cir. 2007) (quoting Favish, 541 U.S. at 174). Plaintiff did not

produce such evidence. Moreover, in light of the lack of evidence of impropriety, the court

agrees with Defendant’s arguments distinguishing the facts here with the significantly higher

profile investigations in CREW, involving the investigation of former House Majority Leader

Tom Delay, and Kimberlin v. DOJ, 139 F.3d 944 (D.C. Cir. 1998), involving the improper

release of information concerning the Vice President. Unlike those cases, in which a record-by-

record approach was deemed necessary, here there is little likelihood that the documents would

“shed light on how the agencies are performing their statutory duties.” CREW, 746 F.3d at 1096.

       Therefore, the court now finds that Plaintiff has not established a sufficient public interest

to outweigh C.G.’s strong privacy interest, and furthermore that, given these investigative files

involved a low-level government employee and there is no public interest, the responsive records

are of a type that may be categorically exempt under Exemption 7(C). The Defendant’s second

motion for summary judgment is therefore granted as to the appropriateness of its categorical

withholding of responsive records.

IV.    CONCLUSION

       For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED.



Date: December 1, 2016


                                              Tanya S. Chutkan
                                              TANYA S. CHUTKAN
                                              United States District Judge




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