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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SANTOS MAXIMINO GARCIA, 

Plaintiff,

v. Civil Action No. 16-cv-94 (JDB)

EXECUTIVE OFFICE FOR UNITED 

STATES ATTORNEYS

 Defendant.

MEMORANDUM OPINION

Plaintiff Santos Maximino Garcia, proceeding pro se, brought this action under the 

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against defendant, the Executive Office 

for United States Attorneys (“EOUSA”), Compl. [ECF No. 1] at 1. Plaintiff seeks “disclosure of 

all information germane to prosecution witness Noe Cruz,” a cooperating witness who testified for 

the government in Garcia’s federal criminal trial. Id. Asserting that it has satisfied its disclosure 

obligations under FOIA, EOUSA moved for summary judgment pursuant to Rule 56 of the Federal 

Rules of Civil Procedure. See Def.’s Mot. for Summ. J. [ECF No. 18] at 1. The Court advised 

plaintiff of the need to respond to EOUSA’s motion and granted him an extension to file a

response. See Oct. 11, 2017 Order [ECF No. 19]. Plaintiff, however, has failed to respond, and 

his time to do so expired over four months ago.

The Court finds that EOUSA’s search for the requested documents was adequate, and that 

the agencies sufficiently justified withholding responsive documents under the relevant statutory 

exemptions. Hence, for the reasons explained below, the Court will grant EOUSA’s motion for 

summary judgment.
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BACKGROUND

On November 16, 2014, plaintiff submitted a request to EOUSA for the release of 

documents pursuant to FOIA. See Compl. Ex. A. In his request, plaintiff sought the disclosure of 

“all information germane to prosecution witness Noe Cruz” relating to plaintiff’s criminal case,

United States v. Garcia, No. 05-0393 (D. Md. judgment issued May 13, 2009). Id. He claimed 

that the prosecution “never attempted to ascertain the scope of [Cruz’s] criminal history” and was 

“deliberately ignorant” as to Cruz’s rape charge, for which he was indicted in 2013, five years after 

plaintiff’s trial. Compl. at 5.

On January 5, 2015, EOUSA notified plaintiff that his request was received. Compl. Ex. 

B. EOUSA’s response informed plaintiff that records pertaining to a third party generally cannot 

be released absent (1) “express authorization and consent of the third party,” (2) “proof that the 

subject of the request is deceased,” or (3) “a clear demonstration that the public interest in 

disclosure outweighs the third party’s personal privacy interest and that significant public benefit 

would result from the disclosure of the requested records.” Id. Since plaintiff did not provide a 

release, death certificate, or public justification for release, EOUSA explained that the release of 

records concerning Noe Cruz would result in an unwarranted invasion of personal privacy. Id.

On January 14, 2015, plaintiff appealed EOUSA’s decision to the Office of Information 

Policy (“OIP”). Compl. Ex. C. He claimed that all documentation involving Cruz should be 

disclosed, citing the D.C. District Court’s decision in Marino v. Drug Enforcement Administration, 

15 F. Supp. 3d 141 (D.D.C. 2014). Id. OIP informed plaintiff on February 10, 2015 that his appeal 

had been received a week earlier. Compl. Ex. D. On June 30, 2015, OIP notified plaintiff that it 

had “affirm[ed], on partly modified grounds, EOUSA’s action on [plaintiff’s] request.” Compl. 

Ex. E. OIP explained that, because any non-public records responsive to plaintiff’s request would 
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be categorically exempt from disclosure, EOUSA properly asserted FOIA Exemption 7(C) and 

was not required to conduct a search for the requested records. Id.

Blocked from receiving his requested information, plaintiff filed a complaint in this Court 

on January 15, 2016, seeking the disputed materials. See Compl. EOUSA filed a motion to 

dismiss on the same grounds provided in OIP’s denial of plaintiff’s FOIA request. See Mot. to 

Dismiss [ECF No. 3] at 1. The Court denied the government’s motion, stating that “EOUSA’s 

Exemption 7(C) claims are best considered as to specific documents, rather than in the abstract.” 

See June 21, 2016 Order [ECF No. 7] at 2. EOUSA then forwarded plaintiff’s request to EOUSA’s 

FOIA contact for the United States Attorney’s Office for the District of Maryland (“USAO-MD”) 

and asked it to search for any records related to plaintiff’s prosecution. See Def.’s Mot. for Summ. 

J. at 4. All systems within the USAO-MD likely to contain records responsive to plaintiff’s request 

were searched, and EOUSA claims that “[t]here are no other records systems or locations within 

EOUSA in which other files pertaining to Garcia were maintained.” Id.

In the course of processing plaintiff’s request, EOUSA determined that certain records 

originated from other agencies and, accordingly, referred those records to the Department of 

Justice’s Criminal Division (“DOJ”), the Department of Homeland Security’s Immigration and 

Customs Enforcement (“ICE”), and DOJ’s Bureau of Alcohol, Tobacco, Firearms, and Explosives 

(“ATF”). Each agency prepared a declaration and a Vaughn index addressing all documents 

withheld pursuant to an applicable FOIA exemption, in accordance with Vaughn v. Rosen, 484 

F.2d 820 (D.C. Cir. 1973). See Decl. of David Luczynski (“Luczynski Decl.”) and Luczynski

Decl. Ex. H (“EOUSA Vaughn Index”) [ECF No. 18-2]; Decl. of John E. Cunningham III 

(“Cunningham Decl.”) and DOJ Vaughn Index [ECF No. 18-3]; Decl. of Matthew Riley (“Riley 
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Decl.”) and Riley Decl. Ex. 1 (“ICE Vaughn Index”) [ECF No. 18-4]; Decl. of Stephanie M. 

Boucher (“Boucher Decl.”) and Boucher Decl. Ex. E (“ATF Vaughn Index”) [ECF No. 18-5].

EOUSA moved for summary judgment on July 7, 2017, claiming it had fulfilled its 

obligations under FOIA. See Def.’s Mot. for Summ. J. at 1. A schedule issued by the Court 

required plaintiff to file a response to defendant’s motion and any cross-motion for summary 

judgment by September 8, 2017. See June 6, 2017 Order [ECF No. 17]. On October 11, 2017, 

after no such response was filed, the Court advised plaintiff of the consequences of failing to 

respond to a dispositive motion under Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988), and 

ordered him to file any response to EOUSA’s motion for summary judgment by November 10, 

2017, see Oct. 11, 2017 Order. Plaintiff has still filed no response; therefore, pursuant to the 

October 11, 2017 Order and the D.C. Circuit’s decision in Winston & Strawn, LLP v. McLean, 

843 F.3d 503, 507–08 (D.C. Cir. 2016), the Court may accept as undisputed defendant’s Statement 

of Undisputed Material Facts in Support of Defendant’s Motion for Summary Judgment and may 

decide the motion without the benefit of any opposition brief from plaintiff.

LEGAL STANDARD

Summary judgment is appropriate “if the movant shows 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). The party seeking summary judgment bears the initial responsibility of demonstrating the 

absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). The moving party may successfully support its motion by identifying those portions of 

“the record, including depositions, documents, electronically stored information, affidavits or 

declarations, stipulations (including those made for purposes of the motion only), admissions, 
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interrogatory answers, or other materials” which it believes demonstrate the absence of a genuine 

dispute of material fact. Fed. R. Civ. P. 56(c)(1)(A); see Celotex, 477 U.S. at 323.

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

Georgacarakos v. FBI, 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (quoting Defs. of Wildlife v. U.S. 

Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). FOIA is a means for citizens to “know 

‘“what their Government is up to.”’” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 

171 (2004) (citation omitted). Accordingly, FOIA requires federal agencies to release their records 

to the public upon request, unless the requested information falls within one of nine statutory 

exemptions to disclosure. See 5 U.S.C. § 552(a)(3)(A), (b). 

District courts review de novo an agency’s decision to withhold requested documents under 

a statutory exemption, and the agency withholding responsive documents bears the burden of 

proving the applicability of claimed exemptions. Am. Civil Liberties Union (ACLU) v. U.S. Dep’t 

of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011). An agency is entitled to summary judgment “if 

no material facts are in dispute and if it demonstrates ‘that each document that falls within the class 

requested either has been produced . . . or is wholly exempt from [FOIA’s] inspection 

requirements.’” Students Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 

2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)). “Ultimately, an agency’s 

justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’”

ACLU, 628 F.3d at 619 (citation omitted).

Even if the nonmoving party fails to respond to the motion for summary judgment, “a 

motion for summary judgment cannot be ‘conceded’ for want of opposition.” Winston & Strawn, 

843 F.3d at 505. The burden is always on the movant to demonstrate why summary judgement is 

warranted, and “[t]he nonmoving party’s failure to oppose summary judgment does not shift that 
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burden.” Id. (quoting Grimes v. District of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015)). Pursuant 

to Federal Rule of Civil Procedure 56(e)(1), the district court can “give a party who has failed to 

address a summary judgment movant’s assertions of fact ‘an opportunity to properly support or 

address’ the fact.” Grimes, 794 F.3d at 92 (quoting Fed. R. Civ. P. 56(e)(1)). However, if the 

nonmovant fails to respond to a movant’s factual submission and then fails to take advantage of 

the opportunity to rectify that failure, the district court may consider the facts undisputed for 

purposes of the motion. Winston & Strawn, 843 F.3d at 507; see Grimes, 794 F.3d at 94.

ANALYSIS

I. EOUSA’S SEARCH FOR REQUESTED DOCUMENTS WAS ADEQUATE UNDER FOIA

An agency only fulfills its FOIA obligations if it can demonstrate beyond a material doubt 

that its search was “reasonably calculated to uncover all relevant documents.” Weisberg v. U.S. 

Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). To prevail in a FOIA action, the agency 

must show that it has made “a good faith effort to conduct a search for the requested records, using 

methods which can be reasonably expected to produce the information requested.” Oglesby v. 

U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “The question is not whether there 

might exist any other documents possibly responsive to the request, but rather whether the search

for those documents was adequate.” Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. 

Cir. 1994) (citation omitted). Adequacy is judged by a standard of reasonableness. Weisberg v. 

U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). The agencies are not required to 

search every record system; rather, a search may be reasonable if it includes all systems “that are 

likely to turn up the information requested.” Ryan v. FBI, 174 F. Supp. 3d 486, 491 (D.D.C. 2016) 

(quoting Oglesby, 920 F.2d at 68).
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The agency may meet its burden and show that the search was adequate by submitting 

reasonably “detailed and non-conclusory” affidavits or declarations that are submitted in good 

faith, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation omitted), and 

an index of the information withheld, Vaughn, 484 F.2d at 827–28. For an affidavit to be 

“reasonably detailed,” it must “set[] forth the search terms and the type of search performed, and 

aver[] that all files likely to contain responsive materials (if such records exist) were searched.”

Oglesby, 920 F.2d at 68. Agency affidavits that “do not denote which files were searched or by 

whom, do not reflect any systematic approach to document location, and do not provide 

information specific enough to enable [the plaintiff] to challenge the procedures utilized” are 

insufficient to support summary judgment. Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 371 

(D.C. Cir. 1980). 

EOUSA submitted a declaration from David Luczynski, an EOUSA Attorney Advisor, in 

order to meet its burden with respect to the adequacy of its search. See Luczynski Decl. ¶ 1. 

Luczynski’s declaration states that EOUSA evaluated plaintiff’s FOIA request and, because each 

United States Attorney’s Office maintains the case files for criminal matters prosecuted by that 

office, it forwarded the request to EOUSA’s FOIA contact for the USAO-MD. Id. ¶ 10. The FOIA 

contact conducted a systematic search for records using the search term “Santos MaximinoGarcia”1 and the case number to determine the location of all files relating to plaintiff. Id. The 

FOIA contact used the “LIONS” system, the computer system used by United States Attorney’s

Offices “to track cases and to retrieve files pertaining to cases and investigations.” Id. With this 

 1 Plaintiff’s last name does not appear to include a hyphen in any of the other documents filed in this case,

which theoretically could suggest that the search terms were inadequate. But see Judicial Watch v. U.S. Dep’t of 

State, Civ. Action No. 12-893 (JDB), 2017 WL 3913212, at *11 (D.D.C. Sept. 6, 2017) (rejecting argument that a 

search was inadequate because the State Department used variants of Anwar Aulaqi’s last name rather than his full 

name). However, plaintiff does not allege that the search terms were inadequate, and it appears that EOUSA found 

plaintiff’s criminal case files without difficulty.
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system, “the user can access databases which can be used to retrieve information based on a 

defendant’s name, the USAO number (United States’ Attorney’s Office internal administrative 

number), and the district court case number for any court cases.” Id. According to Luczynski, 

“[a]ll documents responsive to plaintiff’s FOIA request would have been located in the United 

States Attorney’s office for the District of Maryland” and “[t]here are no other records systems or 

locations within EOUSA in which other files pertaining to plaintiff were maintained.” Id. 

Luczynski’s affidavit provides sufficient information for EOUSA’s search process to be 

challenged: it indicates who conducted the search, specifies the search terms used, and describes

the type of search conducted. See Weisberg, 627 F.2d at 371; Oglesby, 920 F.2d at 68. The 

information in the affidavit indicates that EOUSA took a sensible and systematic approach to 

plaintiff’s FOIA request. Plaintiff has not alleged that any of the information EOUSA provided 

was inaccurate, or that its process was inadequate. Accordingly, because EOUSA ensured that all 

systems “likely to contain records responsive to plaintiff’s request were searched,” Luczynski 

Decl. ¶ 11, and submitted a reasonably detailed declaration describing the search, the search was 

adequate.

II. THE RESPONSIVE DOCUMENTS WERE PROPERLY WITHHELD PURSUANT TO FOIA’S 

STATUTORY EXEMPTIONS.

After the search is deemed adequate, the agency must show that withheld materials fall 

within a FOIA statutory exemption. Leadership Conference on Civil Rights v. Gonzales, 404 F. 

Supp. 2d 246, 253 (D.D.C. 2005). Here, each agency submitted a declaration and Vaughn index 

addressing all responsive documents withheld pursuant to a FOIA exemption. See Luczynski 

Decl. ¶¶ 13–29 and EOUSA Vaughn Index; Cunningham Decl. ¶¶ 10–25 and DOJ Vaughn Index;

Boucher Decl. ¶¶ 16–37 and ATF Vaughn Index; Riley Decl. ¶¶ 25–37 and ICE Vaughn Index. 
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Between them, the agencies invoked seven different FOIA exemptions that they claimed apply to 

all or some of the responsive documents. The Court will address each in turn.

A. FOIA Exemption 6

EOUSA, DOJ, ICE, and ATF withheld records pursuant to FOIA Exemption 6, which 

exempts from disclosure “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). To 

determine whether Exemption 6 applies, a court must first determine whether the responsive 

records are personnel, medical, or similar files. See Multi Ag Media LLC v. U.S. Dep’t of Agric., 

515 F.3d 1224, 1228 (D.C. Cir. 2008). If so, the court must then decide whether the disclosure of 

the third-party information “would constitute a clearly unwarranted invasion of personal privacy.” 

Id. This requires the court “to balance the privacy interest that would be compromised by 

disclosure against any public interest in the requested information.” Id.

“Congress’ primary purpose in enacting Exemption 6 was to protect individuals from the 

injury and embarrassment that can result from the unnecessary disclosure of personal information.”

U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 599 (1982). Accordingly, Exemption 6 is 

designed to cover “detailed Government records on an individual which can be identified as 

applying to that individual.” Id. at 602. Courts have applied this exemption broadly, holding 

specifically that Exemption 6 covers “such items as a person’s name, address, place of birth, 

employment history, and telephone number.” Judicial Watch, Inc. v. U.S. Dep’t of the Navy, 25 

F. Supp. 3d 131, 141 (D.D.C. 2014).

EOUSA, DOJ, ICE, and ATF each invoked Exemption 6 for all records “pertaining to third 

party individuals to protect their personal privacy interests.” Luczynski Decl. ¶ 20. EOUSA’s

Vaughn Index lists, for example, a document withheld under Exemption 6 because it contains 
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names and identifying information of victims and suspects. See, e.g., EOUSA Vaughn Index, Doc.

3; see also DOJ Vaughn Index, Doc. 1 (redacting the names and identifying information of lowerlevel government employees and other third parties who provided information to the Department 

of Justice during the course of criminal investigations and prosecutions); ICE Vaughn Index, Doc.

2 (withholding documents that contain the first and last names, addresses, phone numbers, and fax 

numbers of special agents); ATF Vaughn Index, Doc. 1 (withholding, among other things, the 

names and identifying information of ATF Special Agents, RAGE Task Force Officers, Local Law 

Enforcement Officers and USAO personnel, suspects in the investigation, and confidential 

informants). Given the broad application of Exemption 6, this information falls within Exemption 

6’s “personnel file” category.

The Court must therefore balance the privacy interests and public interest at stake. “The 

balancing analysis for FOIA Exemption 6 requires that we first determine whether disclosure of 

the files ‘would compromise a substantial, as opposed to de minimis, privacy interest,’ because 

‘[i]f no significant interest is implicated . . . FOIA demands disclosure.’” Multi Ag Media LLC, 

515 F.3d at 1229 (quoting Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. 

Cir. 1989)). A “substantial privacy interest exists in avoiding embarrassment, retaliation, or 

harassment and intense scrutiny by the media that would likely follow disclosure.” Judicial Watch, 

Inc. v. U.S. Dep’t of State, 875 F. Supp. 2d 37, 46 (D.D.C. 2012); see also Horner, 879 F.2d at 875 

(“[T]he privacy interest of an individual in avoiding the unlimited disclosure of his or her name 

and address is significant[.]”). Then the Court must “address the question whether the public 

interest in disclosure outweighs the individual privacy concerns.” Multi Ag Media LLC, 515 F.3d 

at 1230. The basic purpose of FOIA is for citizens to be informed about what their government is 

up to. Id. at 1231. Accordingly, information that “sheds light on an agency’s performance of its 
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statutory duties” is in the public interest. U.S. Dep’t of Justice v. Reporters Comm. for Freedom 

of Press, 489 U.S. 749, 773 (1989). 

Here, each agency reasonably determined that the privacy interests at stake were 

substantial. The agencies withheld records or portions of records because the names and 

identifying information of third-party individuals permeated those documents, and disclosure 

could be expected to cause “harassment, embarrassment and/or unsolicited publicity which would 

clearly constitute an unwarranted invasion of their personal privacy.” Cunningham Decl. ¶ 16; see

Luczynski Decl. ¶ 19; Riley Decl. ¶ 29; Boucher Decl. ¶ 22. This claim is especially significant 

in light of plaintiff’s involvement in a RICO investigation by the ATF Regional Area Gang 

Enforcement (RAGE) Unit Task Force, which was established to address the violent crimes carried 

out by the MS-13 street gang. See Boucher Decl. ¶ 11; see also id. ¶ 23 (“ATF determined that 

the disclosure of this information could reasonably be expected to constitute an unwarranted 

invasion of these third parties’ privacy, because being associated with ATF’s criminal 

investigation into Plaintiff’s unlawful actions carries a stigmatizing and negative connotation.”).

The agencies noted that the documents withheld included a wide range of identifying personal 

information, and they raised legitimate concerns about retaliatory actions that could be taken 

against the law enforcement agents and cooperating witnesses whose information the agencies 

wish to shield under Exemption 6—particularly given the violent tendencies of the MS-13 gang—

and about maintaining the confidentiality of witnesses who cooperated with the promise that their 

identities would remain private. See id. ¶¶ 23–25; Cunningham Decl. ¶¶ 16, 18; Luczynski Decl. 

¶ 18; Riley Decl. ¶¶ 28–31. All of these considerations weigh strongly against disclosure. See

U.S. Dep’t of State v. Ray, 502 U.S. 164, 175 (1991).
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These individual privacy interests are not outweighed by any public interest in disclosure. 

Any such interest must be rooted in “the basic purpose of the Freedom of Information Act ‘to open 

agency action to the light of public scrutiny.’” U.S. Dep’t of Air Force v. Rose, 425 U.S. 352, 372 

(1976). The agencies assert that there is little public interest in the disclosure of personal 

information about third parties involved in ATF’s investigation. See Riley Decl. ¶ 36 (“The 

disclosure of this [personal identifying information] serves no public benefit and would not assist 

the public in understanding how the agency is carrying out its statutory responsibility.”); see also

Cunningham Decl. ¶ 18 (“[T]he Criminal Division balanced the significant personal privacy 

interests of a third-party confidential source in not having their name and identifying information 

disclosed against the negligible public interest in the disclosure of their identity.”). The Court 

agrees. While information regarding the RAGE Unit Task Force might shed light on ATF’s 

operations against a prominent gang, the documents withheld under Exemption 6 contain a wide 

range of confidential information about individuals involved with the Task Force’s investigations. 

“[R]arely does a public interest outweigh an individual’s privacy interest when law enforcement 

information pertaining to an individual is sought,” Martin v. Dep’t of Justice, 488 F.3d 446, 457 

(D.C. Cir. 2007), and this is not one of those rare instances.

In sum, because the disclosure of the third-party identifying information would “constitute 

a clearly unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(6), and disclosure of the 

information would serve little public benefit, the agencies’ reliance on Exemption 6 in withholding 

responsive documents was appropriate. 

B. FOIA Exemption (7)(C)

EOUSA, DOJ, ICE, and ATF each withheld records pursuant to FOIA Exemption 7(C). 

This provision exempts from disclosure “records or information compiled for law enforcement 
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purposes, but only to the extent that the production of such law enforcement records or information 

. . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 

U.S.C. § 552(b)(7)(C). Where disclosure of information compiled for law enforcement purposes 

“could reasonably be expected to constitute an unwarranted invasion of personal privacy,” id., 

“such information can be withheld if the privacy interests outweigh the public interest in 

disclosure.” King v. U.S. Dep’t of Justice, 245 F. Supp. 3d 153, 161 (D.D.C. 2017). 

“[P]rivacy interests are particularly difficult to overcome when law enforcement 

information regarding third parties is implicated.” Martin, 488 F.3d at 457. This Court has held 

that, under Exemption 7(C), the disclosure of names and other identifying information of third 

parties that could lead to the individuals becoming “targets of harassment and humiliation” is a 

“‘legitimate interest’ weighing against disclosure.” King, 245 F. Supp. 3d at 161 (quoting Lesar 

v. U.S. Dep’t of Justice, 636 F.2d 472, 487 (D.C. Cir. 1980)); see also SafeCard Servs., Inc., 926 

F.2d at 1205 (“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.”). 

Once the government has shown that the privacy concerns addressed by Exemption 7(C) 

are present, the burden shifts to the requester to demonstrate that the “public interest sought to be 

advanced is a significant one, an interest more specific than having the information for its own 

sake.” Favish, 541 U.S. at 172. The D.C. Circuit has categorically held that, “unless access to the 

names and addresses of private individuals appearing in files within the ambit of Exemption 7(C) 

is necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal 

activity, such information is exempt from disclosure.” SafeCard Servs., Inc., 926 F.2d at 1206.
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Here, EOUSA, DOJ, ICE, and ATF withheld law enforcement records under Exemption 

7(C). See Luczynski Decl. ¶ 21 and EOUSA Vaughn Index; Cunningham Decl. ¶¶ 15–16 and DOJ 

Vaughn Index; Boucher Decl. ¶ 18 and ATF Vaughn Index; Riley Decl. ¶ 26 and ICE Vaughn 

Index. The privacy interests relating to these law enforcement records claimed by each agency 

outweigh the public interest in disclosure. As described above in connection with Exemption 6, 

the agencies each assert a strong privacy interest against disclosure: the release of documents 

compiled for law enforcement purposes could subject individuals to “harassment, harm, or 

exposure to unwanted and/or derogatory publicity and interferences.” Luczynski Decl. ¶ 22.

The public interest in favor of disclosure, meanwhile, is slight. In his complaint, plaintiff 

asserts that the prosecution was “deliberately ignorant” of Cruz’s criminal history during his tenure 

as a cooperating witness, because it “fail[ed] to discover that its principal witness had committed 

a rape and perjured himself during Plaintiff’s 2008 trial to the extent that his testimony purposely 

omitted this offense from any discussion as to his criminal history.” Compl. at 5–6. Plaintiff 

therefore claims, citing Marino v. Drug Enforcement Administration, 15 F. Supp. 3d 141, that this

purported “government impropriety” creates a significant public interest in the release of 

information about Cruz, Compl. at 7. This claim is unpersuasive. In Marino, the court held that 

“Marino has presented evidence indicating that the Government ‘might’ have been negligent in 

failing to know that its key witness was lying to the jury and seriously understating his involvement 

in the [drug ring] conspiracy.” 15 F. Supp. 3d at 154; see also id. at 154–55 (citing reasons why 

the government should have been aware that the primary witness’s role in the drug organization 

was more extensive than he represented, and holding that the government acted either negligently 

in failing to cross-check his story against the government’s broader investigation of the drug 

organization or improperly by presenting his testimony despite knowing it was false).
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Here, by contrast, plaintiff offers no evidence as to why the prosecution should have been 

aware of Cruz’s 2003 rape. See Compl. at 5. Plaintiff’s argument is particularly unconvincing in 

light of the fact that Cruz was not convicted of rape until 2013, five years after plaintiff’s trial. Id. 

Accordingly, Plaintiff has not satisfied his burden of demonstrating that the public interest in 

disclosure outweighs the privacy interests at stake because “there is no such evidence of agency 

misconduct.” SafeCard Servs, Inc., 926 F.2d at 1206.

C. FOIA Exemption (7)(D)

EOUSA, DOJ, and ATF each withheld records pursuant to FOIA Exemption 7(D), which

allows agencies to withhold “records or information compiled for law enforcement purposes,” but 

only to the extent that the withheld information “could reasonably be expected to disclose the 

identity of a confidential source, . . . and, in the case of a record or information compiled by 

criminal law enforcement authority in the course of a criminal investigation . . . , information 

furnished by a confidential source.” 5 U.S.C. § 552(b)(7)(D). A source is confidential for purposes 

of this exemption where “the source provided information under an express assurance of 

confidentiality.” Williams v. FBI, 69 F.3d 1155, 1159 (D.C. Cir. 1995) (quoting U.S. Dep’t of 

Justice v. Landano, 508 U.S. 165, 172 (1993)). 

EOUSA, DOJ, and ATF each invoked Exemption 7(D) in order to protect the identities of 

confidential informants who “provid[ed] information to law enforcement officers with an express 

promise of confidentiality.” See, e.g., EOUSA Vaughn Index, Doc. 4; see also Boucher Decl. ¶¶

27–30; Cunningham Decl. ¶¶ 19–23. DOJ, for example, asserted that it “withheld documents 

where the release of information contained within those records could clearly identify a third-party 

confidential source.” Cunningham Decl. ¶ 23; see also Boucher Decl. ¶ 30 (“If this information 

were released, the source or sources of information would be identified to the Plaintiff.”). The 
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confidential information was provided “during the course of a legitimate law enforcement 

investigation” into the activities of MS-13. Williams, 69 F.3d at 1159. The agencies thus properly 

invoked Exemption 7(D). 

D. FOIA Exemption (7)(E)

ICE and ATF both withheld records pursuant to FOIA Exemption 7(E), which likewise 

exempts from disclosure “records or information compiled for law enforcement purposes,” when 

production “would disclose techniques and procedures for law enforcement investigations or 

prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if 

such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. 

§ 552(b)(7)(E). The D.C. Circuit has recognized that “Exemption 7(E) sets a relatively low bar 

for the agency to justify withholding.” Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). The 

agency need only demonstrate “logically how the release of the requested information might create 

a risk of circumvention of the law.” Id.

Here, ICE and ATF have made that demonstration. Stephanie Boucher, Chief of the 

Disclosure Division at ATF, explained that “[a]lthough the use of recording devices and the use 

of [Confidential Informants/Confidential Sources] are known law enforcement techniques, 

specific information relating to the types of recording devices used, the parameters used to 

determine whether a device or [Confidential Informants/Confidential Sources] will be used, and 

how law enforcement employs those techniques could reveal information that would result in 

circumvention of the law.” Boucher Decl. ¶ 33. If this “sensitive law enforcement information” 

were released, it “would jeopardize the future use of the investigative technique(s) or minimize the 

effectiveness of those techniques.” Id. Similarly, Matthew Riley, Acting Deputy FOIA Officer at 

ICE, explained that “the law enforcement techniques redacted involve cooperative arrangements 
17

between ICE and other agencies,” the disclosure of which “could adversely affect future 

investigations by giving potential subjects of investigations the ability to anticipate the 

circumstances under which such techniques could be employed . . . and identify such techniques 

as they are being employed in order to either obstruct the investigation or evade detection from 

law enforcement officials.” Riley Decl. ¶ 37. These statements logically explain how releasing 

the content of these documents could help criminals circumvent the law, and that “suffices here to 

justify invocation of Exemption 7(E).” Blackwell, 646 F.3d at 42.

E. FOIA Exemption (7)(F)

EOUSA, DOJ, and ATF each withheld records pursuant to FOIA Exemption 7(F), which 

exempts from disclosure “records or information compiled for law enforcement purposes, but only 

to the extent that the production of such law enforcement records or information . . . could 

reasonably be expected to endanger the life or safety of any individual.” 5 U.S.C. § 552(b)(7)(F).

The language in this exemption is “very broad,” Pub. Emps. for Envtl. Responsibility v. U.S. 

Section, Int’l Boundary & Water Comm’n, 740 F.3d 195, 205 (D.C. Cir. 2014), and “has been

interpreted to apply to names and identifying information of law enforcement officers, witnesses, 

confidential informants and other third persons who may be unknown to the requester,” Berard v. 

Fed. Bureau of Prisons, 209 F. Supp. 3d 167, 174 (D.D.C. 2016). In addition, “[d]isclosure need 

not definitely endanger life or physical safety; a reasonable expectation of endangerment suffices.” 

Pub. Emps. for Envtl. Responsibility, 740 F.3d at 205 (emphasis in original). Courts generally 

defer to an agency’s predictions of harm. See id.

Here, EOUSA explained that Exemption 7(F) was asserted “to protect the identities 

(including identifying information) of confidential informants providing information to law 

enforcement officers with an express promise of confidentiality.” E.g., EOUSA Vaughn Index, 
18

Doc. 15. If these identities were released, the individuals would be subject to “retaliation, 

including murder, by [a] violent criminal organization guilty of murder, attempted murder, arson, 

and assault.” Id.; see also Cunningham Decl. ¶ 25 (“In light of the detailed information the 

confidential source provided to federal law enforcement, it is reasonable to expect that release of 

the confidential source identity would place him/her at great risk.”). ATF’s Chief of the Disclosure 

Division, furthermore, explained that “Plaintiff served as a fairly high level MS-13 gang member” 

and “[m]embers of MS-13 frequently engage in criminal activity, including, but not limited to, 

murders, assault, robberies, kidnappings, and witness intimidation.” Boucher Decl. ¶ 35. “Based 

on the violent nature of the MS-13 street gangs . . . ATF asserted Exemption 7(F) to protect the 

identities and identifying information of all third parties involved in this case.” Id. ¶ 37.

“Deferring to the agency’s prediction of harm that could occur to individuals who provided 

[the agency] with information,” Sandoval v. U.S. Dep’t of Justice, No. 16-1013 (ABJ), 2017 WL 

5075821, at *13 (D.D.C. Nov. 2, 2017), the Court concludes that EOUSA, DOJ, and ATF have 

sufficiently justified their invocations of Exemption 7(F). 

F. FOIA Exemption (5)

EOUSA and DOJ each withheld records pursuant to FOIA Exemption 5, which exempts 

from disclosure “inter-agency . . . memorandums or letters that would not be available by law to 

a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). If a document 

requested pursuant to FOIA would normally be subject to disclosure in the civil discovery context, 

“it must also be disclosed under FOIA.” Burka v. U.S. Dep’t of Health & Human Servs., 87 F.3d 

508, 516 (D.C. Cir. 1996). This exemption thus protects—among other things—pre-decisional 

deliberative memoranda, attorney-client communications, and attorney work product, which are 

also privileged from civil discovery. Id.
19

Here, EOUSA and DOJ invoked Exemption 5 for documents that constitute attorney workproduct. See Luczynski Decl. ¶¶ 14–17; Cunningham Decl. ¶¶ 11–12. EOUSA explained that the 

records withheld pursuant to Exemption 5 included, among other things, email communications of 

attorneys involved in plaintiff’s criminal case and draft letters and memoranda. See EOUSA 

Vaughn Index. EOUSA concludes that these documents are therefore exempt because they 

“contain deliberations concerning possible strategies as they relate to the prosecution of the 

plaintiff” and “were prepared by, or at the request of an attorney, and made in anticipation of, or 

during litigation of plaintiff’s criminal case.” Luczynski Decl. ¶ 16. DOJ withheld certain 

documents that were “in the form of applications and worksheets which pertain to a third-party 

confidential source.” Cunningham Decl. ¶ 12. “[B]ecause these applications and worksheets 

involve and contain the thought processes, personal evaluations, litigation strategies and positions 

of government attorneys and their agents,” DOJ asserts that “they are clearly attorney workproduct under Exemption 5.” Id.

The documents withheld are attorney work product of the sort “routinely protected in 

discovery,” and therefore “fall[] within the reach of Exemption 5.” Burka, 87 F.3d at 516. Hence, 

the agencies’ use of Exemption 5 was proper.

G. FOIA Exemption (3)

EOUSA withheld a document pursuant to FOIA Exemption 3, which states that FOIA’s 

disclosure obligation does not apply to matters that are “‘specifically exempted from disclosure by 

[another] statute,’ if the statute ‘(i) requires that the matters be withheld from the public in such a 

manner as to leave no discretion on the issue,’ or ‘(ii) establishes particular criteria for withholding 

or refers to particular types of matters to be withheld.’” Labow v. U.S. Dep’t of Justice, 831 F.3d 

523, 527 (D.C. Cir. 2016) (quoting 5 U.S.C. § 552(b)(3)(A)). Federal Rule of Criminal Procedure 
20

6(e), which bars disclosure of matters occurring before a grand jury, is “a qualifying statute under 

Exemption 3.” Id. While there is no “per se rule against disclosure of any and all information 

which has reached the grand jury chambers,” “the touchstone is whether disclosure would tend to 

reveal some secret aspect of the grand jury’s investigation,” such as “the identities of witnesses or 

jurors.” Senate of the Commonwealth of Puerto Rico ex rel. Judiciary Comm. v. U.S. Dep’t of 

Justice, 823 F.2d 574, 582 (D.C. Cir. 1987) (citations and internal quotation marks omitted).

EOUSA invoked Exemption 3 in connection with a transcript of a conversation between 

third-party individuals, which described detailed criminal activity, including names of individuals, 

because “the release of the name of the witness or other contextual information that could lead to 

the derivation of the name would compromise the integrity of the grand jury system.” Luczynski 

Decl. ¶ 13; EOUSA Vaughn Index, Doc. 16. As disclosure of the document in question “would 

tend to reveal . . . the identities of [grand jury] witnesses,” Senate of Puerto Rico, 823 F.2d at 582

(internal quotation marks omitted), this document was properly withheld under Exemption 3.

III. SEGREGABILITY

FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to 

any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. 

§ 552(b). “Agencies are entitled to a presumption that they complied with the obligation to 

disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 

(D.C. Cir. 2007). Here, EOUSA, DOJ, ICE, and ATF each examined all responsive documents 

“page-by-page” and determined that “no reasonably segregable non-exempt information was 

withheld from plaintiff.” Luczynski Decl. ¶ 31; see also Boucher Decl. ¶ 38 (“All of the documents 

provided by EOUSA to ATF pertain to third parties. . . . A Disclosure Specialist reviewed the 

materials responsive to Plaintiff’s FOIA request and determined that no documents could be 
21

reasonably segregated from exempt information and produced to Plaintiff.”); Cunningham Decl. ¶ 

26 (“Upon review of the records responsive to plaintiff’s request, the Criminal Division has also 

concluded that there is no segregable non-exempt information.”); Riley Decl. ¶ 39 (“I have 

reviewed each record line-by-line to identify information exempt from disclosure or for which a 

discretionary waiver of exemption could be applied.”).

Plaintiff “has not presented sufficient evidence”—or, indeed, any evidence—“to rebut th[e] 

presumption” that these statements correctly characterize the documents at issue and that the 

agencies have complied with their obligation to disclose segregable material. Hodge v. FBI, 703 

F.3d 575, 582 (D.C. Cir. 2013). Hence, the agencies properly withheld records under FOIA 

Exemptions 3, 5, 6, 7(C), 7(D), 7(E), and 7(F), and appropriately concluded that no non-exempt 

material was reasonably segregable.2

CONCLUSION

For the foregoing reasons, EOUSA’s motion for summary judgment will be granted. A 

separate order has been issued on this date.

 /s/ 

 JOHN D. BATES 

 United States District Judge

Dated: March 14, 2018

 2 EOUSA, ATF, and ICE also invoked the Privacy Act, 5 U.S.C. § 552a(j)(2), to justify withholding

responsive documents in their possession. Because plaintiff does not bring any claims under the Privacy Act, the 

Court need not address the Act. However, “the Court notes that all of the records in this case appear to originate 

within record systems that have been exempted from the Privacy Act.” Parker v. U.S. Immigration & Customs Enf’t, 

238 F. Supp. 3d 89, 98 n.8 (D.D.C. 2017); see 28 C.F.R. § 16.81(a)(1); Privacy Act of 1974; Department of Homeland 

Security U.S. Immigration and Customs Enforcement–009 External Investigations System of Records, 75 Fed. Reg. 

404 (Jan. 5, 2010); Boucher Decl. ¶¶ 7–9; Luczynski Decl. ¶ 12; Riley Decl. ¶¶ 15–21. Thus, EOUSA, ATF, and ICE 

were likely “within [their] right to withhold documents identified in [these] database[s].” Campbell v. United States 

Dep’t of Justice, 133 F. Supp. 3d 58, 69 (D.D.C. 2015).