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Osama Abdelfattah v. U.S. Immigration and Customs Enforcement

March 30, 2012


The opinion of the court was delivered by: Royce C. Lamberth Chief Judge United States District Court for the District of Columbia


Plaintiff pro se Osama Abdelfattah brings this suit against defendant U.S. Immigration and Customs Enforcement ("ICE"), alleging violations of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Before the Court is ICE's renewed motion for summary judgment [Dkt. # 16]. Upon consideration of the motion, plaintiff's opposition thereto, and the record of this case, the Court concludes that the motion must be granted.


On August 31, 2006, the Information Disclosure Unit of ICE received an email from Abdelfattah, requesting all records about plaintiff that were held in any record system under the jurisdiction of ICE, including Treasury Enforcement Communications System (TECS) records and investigation records. Def.'s Mot. for Summ. J ("Def.'s Mot."), Decl. of Reba A. McGinnis, ¶ 5. ICE searched for records using plaintiff's name and date of birth as search criteria, and identified 113 responsive records. Id. ¶ 6.

In a letter dated September 15, 2006, ICE notified counsel for Abdelfattah that it would release eighty-nine pages of records, with certain information redacted pursuant to FOIA Exemptions 2 and 7(C), and would withhold the other twenty-four pages pursuant to Exemptions 2, 5, and 7(C). Id. ¶ 14.

Abdelfattah filed this suit on October 15, 2007. He alleged that he had filed an administrative appeal of the redactions and withholdings, First Am. Compl. ¶ 17, but ICE moved to stay the proceedings on the grounds that the U.S. Department of Homeland Security (DHS) had not received plaintiff's appeal. Abdelfattah submitted a new appeal, which was denied on April 9, 2008. Def.'s Mot., Ex. A (Letter from Victoria Newhouse, Attorney-Advisor, DHS (Apr. 9, 2008)). DHS did, however, determine that ICE's claim to withhold certain records pursuant to Exemption 5 had been in error, and withdrew that claim. Id.

ICE moved for summary judgment [Dkt. # 9]. After the Supreme Court decided Milner v. Department of Navy, 131 S.Ct. 1259 (2011), holding that FOIA Exemption 2 was substantially smaller than the D.C. Circuit had previously understood it to be, the Honorable Henry H. Kennedy, Jr. ordered supplemental briefing. ICE reprocessed the responsive records, and released some information that had previously been withheld pursuant to Exemption 2. Def.'s Renewed Mot. for Summ. J, Decl. of Catrina Pavlik-Kennan, ¶ 11. Other information withheld under that exemption was re-classified as being withheld under Exemption 7(E). Id. ¶ 12. ICE filed a renewed motion for summary judgment, which is now ripe for determination.


Summary judgment should be granted when the materials in the record show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a)--(c). This standard requires more than the mere existence of some factual dispute between the parties: "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48 (1986). "A fact is 'material' if a dispute over it might affect the outcome of a suit under the governing law." Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "An issue is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Doe v. IRS, 706 F. Supp. 2d 1, 5 (D.D.C. 2009) (citing Anderson, 477 U.S. at 248).

This Court reviews a motion for summary judgment arising from an agency's decision to withhold or disclose documents under FOIA de novo. 5 U.S.C. § 552(a)(4)(B); see also Mead Data Ctr., Inc. v. Dep't of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). In responding to a FOIA request, an agency must conduct a reasonable search for responsive records. Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990); Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1352 (D.C. Cir.1983). Furthermore, to be entitled to summary judgment, a defendant must demonstrate that responsive documents that were not produced are exempt from disclosure, Weisberg v. U.S. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir.1980), and that any information redacted was either exempt from disclosure or "inextricably intertwined with" exempt information. Mead Data,566 F.2d at 260 (citations and internal quotation marks omitted).

To meet its burden, a defendant may rely on relatively detailed and nonconclusory affidavits or declarations. McGehee v. CIA, 697 F.2d 1095, 1102 (D.C. Cir. 1983). Such agency declarations are "accorded a presumption of good faith." Negley v. FBI, 169 F. Appx. 591, 594 (D.C. Cir. 2006). Summary judgment in favor of a defendant is justified if these materials "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." Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009).


ICE asserts that, after conducting a reasonable search, it has disclosed all responsive, non-exempt information to Abdelfattah, and that, as such, it is entitled to judgment as a matter of law. The Court understands Abdelfattah to make two arguments in response. First, Abdelfattah argues that ICE cannot withhold any information pursuant to FOIA Exemption 7, which applies to information compiled for law enforcement purposes, because he is a law-abiding person and could not be the subject of any legitimate investigation by law enforcement authorities. Second, Abdelfattah argues that ICE has not met its burden to show that any non-exempt information that has been withheld is not reasonably segregable from exempt information. The Court considers these arguments in turn.

FOIA Exemption 7 protects from disclosure "records or information compiled for law enforcement purposes" that satisfy any of five criteria. 5 U.S.C. § 552(b)(7). Exemption 7(C), which covers information the release of which "could reasonably be expected to constitute an unwarranted invasion of personal privacy," id. § 552(b)(7)(C), and Exemption 7(E), which applies to information the release of which "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or ...

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