Rosenberg v. U.S. Dep't of Immigration & Customs Enforcement, Civil Action No. 12–452 CKK

13 F.Supp.3d 92

Lawrence Rosenberg, Plaintiff

v.United States Department of Immigration and Customs Enforcement, et al., Defendants.

Civil Action No. 12–452 CKK

United States District Court, District of Columbia.

February 3, 2014

John Matthew Gore, Lawrence D. Rosenberg, Jones Day, Washington, DC, for Plaintiff.

Kevin Michael Laden, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, UNITED STATES DISTRICT JUDGE

Plaintiff Lawrence Rosenberg submitted Freedom of Information Act requests to various federal agencies seeking, among other things, records related to the raid of Agriprocessors, Inc., meatpacking plant and the subsequent prosecution of Sholom Rubashkin whom Plaintiff represents. Dissatisfied with the agencies' responses to his request, Plaintiff filed suit against United States Immigration and Customs Enforcement, the United States Marshals Service, the Executive Office for United States Attorneys, and the Federal Bureau of Investigation. On July 22 and 23, 2013, the Court granted the Motions to Dismiss or, in the alternative, for Summary Judgment filed by United States Immigration and Customs Enforcement, the Executive Office for United States Attorneys, and the United States Marshals Service. See Order (July 22, 2013), ECF No. [64]; Order (July 23, 2013), ECF No. [66]. On August 11, 2013, the Court granted in part the FBI's Motion for Summary Judgment and denied in part the Plaintiff's Cross–Motion for Summary Judgment, but held in abeyance the parties' motions as to the adequacy of the agency's search and the agency's application of Exemption 7(D), as well as the agency's application of Exemptions 6, 7(C), and 7(E) on a specific set of pages identified by the Court. See Order (Aug. 11, 2013), ECF. No [69]. The Court requested supplemental briefing on the application of the exemptions held in abeyance. Id.

Presently before the Court is the FBI's [71] Renewed Motion for Summary Judgment. Upon consideration of the pleadings,¹ the documents submitted to the Court for in camera review, the relevant legal authorities, and the record as a whole, the Court finds the FBI has demonstrated that it conducted an adequate search for potentially responsive documents and has justified its redaction of information pursuant to Exemptions 6 and 7(C) on all but one of the pages identified in the Court's August 2013 Order. The Court further finds that the FBI has justified its redaction of information on all except fifteen of the pages on which it invoked Exemption 7(D) in addition to Exemptions 6 and 7(C). Finally, the Court finds the FBI has justified its redaction of information that it withheld pursuant to Exemption 7(E). Accordingly, the FBI's [71] Renewed Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. Furthermore, the FBI's [47] Motion for Summary Judgment and Plaintiff's [51] Cross–Motion for Summary Judgment, portions of which were previously held in abeyance, are GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

A. Factual Background

Sholom Rubashkin managed a kosher meatpacking company in Postville, Iowa, named Agriprocessors, Inc., which at one point employed over one thousand individuals. United States v. Rubashkin, 655 F.3d 849, 853 (8th Cir.2011). In May 2008, Immigration and Customs Enforcement raided the plant, and arrested nearly four hundred employees for immigration violations, bringing criminal charges against most of the arrestees. Id. at 854. “Around that time,” the United States Attorney's Office in the Northern District of Iowa informed Mr. Rubashkin that he was the target of a federal investigation for financial and immigration crimes. Id. Mr. Rubashkin was arrested in November 2008 and charged by indictment with 163 counts, including fourteen counts each of bank and wire fraud, and sixty nine counts of harboring undocumented aliens for profit. Mr. Rubashkin was eventually convicted of seventy one counts of bank, mail, and wire fraud, money laundering, and false statements to bank, in addition to fifteen counts of willful violations of orders of the Secretary of Agriculture. Id. Relying on documents obtained through a Freedom of Information Act request submitted prior to his trial, Mr. Rubashkin subsequently moved for a new trial, or for discovery, which the trial court denied. Id. at 856. The Eighth Circuit affirmed the denial of Mr. Rubashkin's motion for a new trial, as well as his underlying conviction and sentence on September 16, 2011. Id. at 869.

By letter dated September 28, 2011, Plaintiff, an attorney who represents Mr. Rubashkin and his wife and their children, submitted a Freedom of Information Act (“FOIA”) request to the FBI seeking, among other things: (1) “any and all information relating to the raid of Agriprocessors, Inc., a meatpacking plant in Postville, Iowa, on May 12, 2008 (“the raid”) and the subsequent prosecution of Sholom Rubashkin”; (2) “any and all information relating to actions proposed to take place in year 2000 against Agriprocessors, Inc., as documented in the Des Moines Register's August 6, 2011 article, ‘Immigrant Raid Halted in 2000 on Election Fear, Ex–Agent Says' ”; (3) “any and all information relating to any actions considered to take place against Iowa Turkey Products, Inc. of Postville, IA”; (4) “any and all information relating to the class action case Salazar v. Agriprocessors, 527 F.Supp.2d 873 (N.D.Iowa 2007) ”; and (5) any and all documents reflecting communications between “any government agency or official” and over 101 individuals regarding Mr. Rubashkin or Agriprocessors. Hardy Decl., Ex. A (Pl.'s FOIA Request), ECF No. [46–1], at 2–8. The Plaintiff's request included 39 numbered paragraphs outlining his specific requests. See id.

The FBI acknowledged the Plaintiff's request by letter dated October 5, 2011, assigning the request number 1174698. Def.'s Stmt. ¶ 3.² The FBI advised the Plaintiff that it would search the “indices to [the FBI's] Central Records System for the information responsive to this request.” Id. ; Hardy Decl., Ex. B (10/5/11 Acknowledgment Ltr.). Two weeks later, the FBI notified the Plaintiff that it located 1,223 potentially responsive pages. Hardy Decl., Ex. C (10/19/11 Ltr. FBI to Pl.). The letter advised the Plaintiff that if all of the potentially responsive pages were to be released, the Plaintiff would owe the FBI $112.30 in duplication fees to receive a paper copy or $20.00 to receive the release on a CD. Id. The FBI did not receive a response to its October 19, 2011, letter from the Plaintiff, and did not produce any documents in response to the request.

The Plaintiff filed suit on March 23, 2012. On September 7, 2012, the FBI processed the pages identified as potentially responsive to the Plaintiff's request. Hardy Decl. ¶ 11. Of the 1,233 pages initially identified, 257 were found to be duplicates. Second Hardy Decl., ECF No. [55–1], ¶ 8; Hardy Decl. ¶ 4. The FBI released 39 pages in full and 322 pages in part. Hardy Decl. ¶ 4. One hundred and fifty five pages were withheld in their entirety pursuant to various FOIA exemptions. Id. The remaining 450 pages were withheld because they are court materials sealed by the United States District Court for the Northern District of Iowa. Id.

B. Procedural Background

The parties filed cross-motions for summary judgment in the first part of 2013. The FBI argued that it had conducted an adequate search for documents potentially responsive to the Plaintiff's FOIA request and that it properly withheld certain information from Plaintiff pursuant to FOIA exemptions 3, 6, 7(C), 7(D), and 7(E). Although the Court granted summary judgment on several of the FBI's arguments, the Court found that the FBI had failed to demonstrate that it conducted an adequate search for potentially responsive documents, and also failed to justify why certain information was redacted pursuant to FOIA exemptions 6, 7(C), and 7(E). See Mem. Op. (Aug. 11, 2013), ECF No. [70], at 9–12, 15–21, 23–26. Consequently, the Court ordered the FBI to supplement its motion for summary judgment regarding the adequacy of its search and its application of FOIA exemptions 6, 7(C), and 7(E) to justify specific redactions in certain responsive documents. See Order (Aug. 11, 2013), at 2. In addition, because the Court found the Plaintiff did not fully articulate his challenge to the FBI's invocation of Exemption 7(D) until his reply brief, the Court provided the FBI an opportunity to supplement its showing as to the use of Exemption 7(D). See Mem. Op. (Aug. 11, 2013), at 22–23; Order (Aug. 11, 2013), at 2. The FBI filed its present Renewed Motion for Summary Judgment in response to the Court's August 11, 2013, Order requesting supplemental briefing.

II. LEGAL STANDARD

Congress enacted FOIA to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (citation omitted). Congress remained sensitive to the need to achieve balance between these objectives and the potential that “legitimate governmental and private interests could be harmed by release of certain types of information.” Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C.Cir.1992) (en banc) (citation omitted), cert. denied, 507 U.S. 984, 113 S.Ct. 1579, 123 L.Ed.2d 147 (1993). To that end, FOIA “requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material.” Milner v. Dep't of Navy, 562 U.S. 562, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). Ultimately, “disclosure, not secrecy, is the dominant objective of the Act.” Rose, 425 U.S. at 361, 96 S.Ct. 1592. For this reason, the “exemptions are explicitly made exclusive, and must be narrowly construed.” Milner, 131 S.Ct. at 1262 (citations omitted).

When presented with a motion for summary judgment in this context, the district court...