                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA



JUAN ANTONIO VAZQUEZ,                            )
                                                 )
                     Plaintiff,                  )
                                                 )
                     v.                          )   Civil Action No. 10-0039 (RJL)
                                                 )
U.S. DEPARTMENT OF JUSTICE et al.                )
                                                 )
                     Defendants.                 )


                                         ~
                              MEMORANDUM OPINION
                          (August ~'f , 2012) [#40, #43 and #44]

       This action brought in part under the Freedom oflnformation Act ("FOIA"), 5

U.S.C. § 552, is on remand from the United States Court of Appeals for the District of

Columbia Circuit for reconsideration of defendants' invocation ofFOIA exemption 2 in

light of Milner v. Dep 't of the Navy, 131 S.Ct. 1259 (2011). See Order, No. 11-5063

(D.C. Cir. July 25, 2011) [Dkt. # 31]. The complaint arose from the Department of

Justice's ("DOJ") denial of plaintiff's request for records about him maintained by the

Federal Bureau of Investigation's National Crime Information Center ("NCIC"). See

Vazquez v. US. Dep't ofJustice, 764 F. Supp. 2d 117, 118-19 (D.D.C. 2011)

(Background). Defendants move to dismiss or for summary judgment [Dkt. # 40] and
plaintiff cross moves for summary judgment [Dkt. # 44]. 1 Upon consideration of the

parties' submissions and the relevant parts of the record, the Court will grant defendants'

motion for summary judgment, deny plaintiffs cross-motion for summary judgment, and

enter judgment accordingly.

                                  LEGAL STANDARD

       "When assessing a motion for summary judgment under FOIA, the Court shall

determine the matter de novo." Judicial Watch, Inc. v. US. Dep't of Homeland Sec., 598

F. Supp. 2d 93, 95 (D.D.C. 2009) (citing 5 U.S.C. § 552(a)(4)(B)). Summary judgment

shall be granted when the movant demonstrates "that there is no genuine dispute as to any

material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ.

P. 56(a). In a FOIA action, the Court may award summary judgment based solely on

information provided in affidavits or declarations if they "describe the documents and the

justifications for nondisclosure with reasonably specific detail, demonstrate that the

information withheld logically falls within the claimed exemption, and are not

controverted by either contrary evidence in the record nor by evidence of agency bad

faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such

affidavits or declarations "are accorded a presumption of good faith, which cannot be

rebutted by purely speculative claims about the existence and discoverability of other

documents." Safe Card Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)

(citation and internal quotation marks omitted). To rebut the presumption, a plaintiff
1Also pending is Plaintiffs Request for Judicial Notice [Dkt. # 43], which the Court will
grant as unopposed.
                                             2
"must point to evidence sufficient to put the Agency's good faith into doubt." Ground

Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). "Ultimately, an

agency's justification for invoking a FOIA exemption is sufficient if it appears logical or

plausible[,]" is adequately supported, and is not contradicted by the record. Larson v.

Dep't of State, 565 F.3d 857, 862, 865 (D.C. Cir. 2009) (citation and internal quotation

marks omitted).

                                         ANALYSIS

       The Department of Justice reasserts its response to neither confirm nor deny the

existence of records responsive to plaintiffs FOIA request, which the Court had found

properly justified under exemption 2. Vazquez, 764 F. Supp. 2d at 121-22. Commonly

referred to as a Glomar response, an agency" 'may refuse to confirm or deny the

existence of records where to answer the FOIA inquiry would cause harm cognizable

under an FOIA exception.'" !d. at 120 (quoting Wolfv. CIA, 473 F.3d 370, 374 (D.C.

Cir. 2007)) (other citation omitted). In other words, "an agency may issue a Glomar

response ... if the particular FOIA exemption at issue would itself preclude the

acknowledgement of such documents." Electronic Privacy Info. Center v. Nat'! Sec.

Agency, 678 F.3d 926, 931 (D.C. Cir. 2012) (citing Wolf, 473 F.3d at 374); see El

Badrawi v. Dep 't ofHomeland Sec., 596 F. Supp. 2d 389, 396 (D. Conn. 2009) (finding

Glomar response proper under exemptions 2 and 7(E) where "confirming or denying that

[requester] is a subject to interest in [NCIC record] would cause the very harm [those

exemptions] are designed to prevent").
                                             3
       The Department of Justice's Glomar response is based on FOIA exemption 7(E),

which protects from disclosure law enforcement records to the extent that their

production "would disclose techniques and procedures for law enforcement

investigations or prosecutions ... if such disclosure could reasonably be expected to risk

circumvention ofthe law." 5 U.S.C. § 552(b)(7)(E) (2009). "[E]ven commonly known

procedures may be protected from disclosure if the disclosure could reduce or nullify

their effectiveness." Citizens for Responsibility and Ethics in Wash. v. US. Dep't of

Justice, 2012 WL 2354353, *8 (D.D.C. June 8, 2012) (quoting Judicial Watch, Inc. v.

US. Dep't of Commerce, 337 F. Supp. 2d 146, 181 (D.D.C. 2004)).

       Plaintiff "seeks access [to] a log ofNCIC transactions" concerning him. Decl. of

Juan Antonio Vazquez ("Pl.'s Decl.") [Dkt. # 44-1]    ~   6. Defendants' declarant, Kimberly

Del Greco, describes the NCIC as a compilation of "nineteen separate databases, all of

which contain material compiled for law-enforcement purposes." Supp. Decl. of

Kimberly J. Del Greco [Dkt. # 40-3]   ~   5. The listed databases- Wanted Person File,

Missing Person File, Suspected Terrorist File, Gang File, National Sex Offender

Registry, Unidentified Persons File, Secret Service Protective File, Protection Order File,

Immigration Violator File, Foreign Fugitive File, Identity Theft File, License Plate File,

Stolen Vehicle File, Stolen Boat File, Gun File, Securities File, Stolen/Lost Article File,

id. - reasonably reflect the asserted law enforcement purpose. 2 According to Del Greco,


2According to Del Greco, the NCIC transaction log that plaintiff seeks, if it exists, would
be "stored in the NCIC database as an administrative convenience; it does not generally
exist in paper form anywhere in the FBI's records." Supp. Del Greco Decl. ~ 6.
                                               4
"[a] key purpose of the NCIC database is to support law enforcement agencies ... to

warn law enforcement of potential danger, and to promote the exchange of information in

criminal and counterterrorism investigation." !d.; see also Vazquez, 764 F. Supp. 2d at

121 ("The Attorney General has delegated to the FBI its responsibility to 'acquire,

collect, classify, and preserve identification, criminal identification, crime, and other

records' .... Detection of behaviors and activities form the basic core of pending

investigative efforts.") (quoting Del Greco Decl. ~~ 5, 23).

       In addition, "NCIC transactions [are] performed[] in response to queries made by

law enforcement agencies regarding an individual[.]" Supp. Del Greco Decl. ~ 7. Del

Greco states that "while the public generally knows and understands" that law

enforcement utilizes the NCIC databases "to perform background checks and/or other

related checks ... the details of those queries - including how they are executed, what

search terms are used, what [] passwords and clearances are required, and who has

authorization to run such queries, are not known to the public .... " Id.   ~   6. The Court

finds that defendants have established the threshold requirement that the responsive

records be compiled for law enforcement purposes and have shown that utilization of the

Therefore, the FBI's Criminal Justice Information Services would be "required to
generate the record ... from the administrative side of the database by querying
particular fields." Id. In responding to a FOIA request, however, an agency has no duty
to create records. Forsham v. Harris, 445 U.S. 169, 186 (1980) (citing NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 161-62 (1975)); see Baker v. Hostetler LLP v. US. Dep 't
ofCommerce, 473 F.3d 312, 323 (D.C. Cir. 2006) ("[FOIA] does not obligate agencies to
create or retain documents; it only obligates them to provide access to those which it in
fact has created and retained.") (quoting Kissinger v. Reporters Comm. for Freedom of
the Press, 445 U.S. 136, 152 (1980)) (alteration in original). Hence, even if the requested
records were acknowledged, plaintiffs FOIA claim might fail for this reason.
                                              5
NCIC database constitutes a "procedure[] for law enforcement investigations" covered by

exemption 7(E).

       As for the asserted harm, Del Greco states, inter alia, that "[p]ublic confirmation

ofNCIC transactions would alert individuals that they are the subject of an investigation

as well as reveal[] the identity of the investigative agency. With this information,

individuals could modify their criminal behavior, thereby preventing detection by law

enforcement agencies and risking circumvention of the law." Supp. Del Greco Decl. ~ 7.

In other words, persons knowing that they are being investigated by a law enforcement

entity, which the requested information would reveal, could reasonably be expected to

use the information to circumvent the law. Conversely, a person with knowledge "that

there have been no NCIC checks run against him," and, hence, that he is "not on law

enforcement's radar" could reasonably be expected to continue "to engage in unlawful

endeavors" with renewed vigor.    !d.~   8. This Court previously found "that DOJ justified

its Glomar response by showing how a substantive response to plaintiffs FOIA request

could cause [similar] harm addressed by exemption 2." Vazquez, 764 F. Supp. 2d at 121-

22. Since exemption 7(E) is designed to prevent the same type of harm, the Court finds

no reason to depart from that earlier finding.

       Plaintiffs opposing declaration fails to create a materially factual dispute or to call

into question defendants' reasonably detailed declaration. Plaintiffs personal reasons for

wanting the requested records, see generally Pl.'s Dec I., are irrelevant because a

requester's identity and the purpose of his request generally are immaterial to the FOIA
                                                 6
analysis. See Loving v. Dep 't ofDefense, 550 F .3d 32, 39 (D.C. Cir. 2008) (quoting U.S.

Dep't ofJustice v. Reporters Comm.for Freedom ofthe Press, 489 U.S. 749, 771

(1989)); see also Stonehill v. IRS, 558 F.3d 534, 538-39 (D.C. Cir. 2009) ("[W]hen a

document must be disclosed under FOIA, it must be disclosed to the general public and

the identity of the requester is irrelevant to whether disclosure is required.") (citations

omitted). And to the extent that plaintiff is asserting an overriding public interest to

compel disclosure of otherwise exempt records, see Pl.'s Decl. ~~ 11-15, his argument is

misplaced because the court's duty to weigh the privacy interests of individuals against

the public's interest in disclosure arises only under exemptions 6 and 7(C), which are not

asserted here. See Lesar v. United States Dep 't ofJustice, 636 F .2d 4 72, 486 n.80 (D.C.

Cir. 1980) ("Exemption 7(C) and Exemption 6 run contrary to the theory of other

exemptions. Here the court is called upon to balance the conflicting [public/private]

interests and values involved; in other exemptions Congress has struck the balance and

the duty of the court is limited to finding whether the material is within the defined

category.") (citation omitted).

                                      CONCLUSION

       For the foregoing reasons, the Court finds that the Department of Justice properly

invoked Exemption 7(E) as the basis for its Glomar response and satisfied its obligations

under the FOIA, and therefore, defendants are entitled to judgment as a matter of law.

Consequently, the Court will grant defendants' motion for summary judgment and will



                                               7
deny plaintiffs cross-motion for summary judgment. A separate final, order

accompanies this Memorandum Opinion.
                                                /7""
                                                'tV.~
                                              RICHARD          ON
                                              United States District Judge




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